Maddox and Maille
[2012] FMCAfam 294
•29 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MADDOX & MAILLE | [2012] FMCAfam 294 |
| FAMILY LAW – Interim parenting orders – where the child should live – views of the child – family report – other relevant considerations in child’s best interests – venue change application – relevant considerations. |
| Family Law Act 1975 (Cth), ss.60CC(2), (3), (4), 61DA(3) Federal Magistrates Court Rules 2001 (Cth), r.8.01 |
| Zabini & Zabini [2010] FamCAFC 10 Goode & Goode [2006] FamCA 1346 Marvel & Marvel [2010] FamCAFC 101 SS & AH [2010] FamCA FC 13 Hall & Hall (1979) FLC 90-713 R & R Childrens Wishes (2000) FLC 93-000 Harrison & Woollard [1995] FamCA 30 Friscioni & Friscioni [2010] FamCAFC 108 Sheen & Paulo [2007] FamCA 1175 |
| Applicant: | MR MADDOX |
| Respondent: | MS MAILLE |
| File Number: | MLC 11468 of 2011 |
| Judgment of: | O'Sullivan FM |
| Hearing date: | 23 March 2012 |
| Date of Last Submission: | 23 March 2012 |
| Delivered at: | Dandenong |
| Delivered on: | 29 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Wilson |
| Solicitors for the Applicant: | Robert A McHugh Solicitor |
| Counsel for the Respondent: | Ms R. Stoikovska |
| Solicitors for the Respondent: | Holding Redlich Lawyers |
ORDERS UNTIL FURTHER ORDER:
The child, X born (omitted) 1998 (“the child”) live with the mother.
The child spend time with the father commencing from the beginning of Term 2 in Queensland:
(a)from Friday, 4 May 2012 to Monday, 7 May 2012;
(b)during the Term 2 school holidays and from Thursday, 28 June 2012 to Sunday, 8 July 2012;
(c)during Term 3 on and from:
(i)Friday, 20 July 2012 to Monday, 23 July 2012;
(ii)Thursday, 30 August 2012 to Sunday, 2 September 2012 for Father’s Day.
(d)during Term 3 school holidays from Saturday, 22 September 2012 to Sunday, 30 September 2012;
(e)during the long summer holidays from Thursday, 27 December 2012 until Monday, 28 January 2013;
(f)as otherwise agreed between the parties.
That for the purposes of the child’s time with the father in paragraph (2) herein the father be responsible for the costs of the child’s flights from Brisbane to Melbourne and the mother be responsible for the costs of the child’s flights from Melbourne to Brisbane.
The proceedings be adjourned to the Brisbane Registry of the Federal Magistrates Court of Australia and it is requested that it be listed on a date to be fixed.
Pursuant to s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Maddox & Maille is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
MLC 11468 of 2011
| MR MADDOX |
Applicant
And
| MS MAILLE |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Before the Court today are proceedings concerning interim parenting orders as defined in section 64B of the Family Law Act 1975 (“the Act”). The applicant is Mr Maddox (“the father”) and the respondent is Ms Maille (“the mother”).
The father is aged 53 and a (occupation omitted) living in Victoria. The mother is 42 years of age, has a (qualifications omitted) in (omitted) and is now living in Brisbane but not working. The parties commenced a relationship in 1997 and were married on (omitted) 2000. The parties separated on 19 September 2010 and in late 2010 the mother moved to Brisbane. Both parties have now re-partnered.
The interim proceedings between the father and the mother at least at this stage concern a dispute over parenting orders for their son, X born (omitted) 1998, aged 13 (“the child”) and a dispute over inter alia division of property. However the latter part of the dispute was not ventilated at the interim hearing the subject of these reasons.
The father commenced the proceedings by an application filed on 20 December 2011. That application sought the following orders:
“1.That the mother and father retain joint parental responsibility for the long term care, welfare and development of the child X born (omitted) 1998.
2.That the father have sole parental responsibility for the day to day care, welfare and development of the child.
3.That the child reside with the father.
4.That the child spend time with the mother as agreed between the parties.
5.There be such a division of the matrimonial property between the parties as is just and equitable.
6.Such further orders as this Honourable Court deems appropriate.”
The father then filed an application in a case on 17 February 2012 which sought the following orders:
“1.That the father and mother retain joint parental responsibility for the long term care, welfare and development of the child X born (omitted) 1998.
2.That the father have sole responsibility for the day to day care, welfare and development of the child.
3.The child reside with the father.
4.The child spend time with the Mother as agreed between the parties.
5.That the parties forthwith sign all necessary documentation and do all things and acts necessary to immediately effect the sale of the real property located at, Property N, USA to Mr A for $430,000USD on the terms contained in the written offer to purchase signed by Mr A and dated 10 February 2012.
6.That in the event that the proposed sale of the said property to Mr A does not forthwith proceed as per the aforestated paragraph that the arties forthwith sign all necessary documentation and do all things and acts necessary to immediately effect the sale of the real property located at Property N, USA as per the recommendation as to the terms and conditions of the managing agents Property N with a reserve of $400,000USD.
7.Upon settlement of the sale of said real property, the proceeds of sale be applied to discharge all the costs and commissions of the sale, the discharge of the mortgage(s) encumbering the real property and any other debts and liabilities arising out of the parties ownership and sale of the said real property and thereafter, the nett proceeds remaining be held in an interest bearing account in the names of both parties pending final resolution of these proceedings.
8.In default of the Respondent doing all acts and things and executing all such documents as are necessary to give effect to the preceding Orders concerning the sale of Property N, USA real property, a Registrar of this Honourable Court at Melbourne, be appointed pursuant to section 106A of the Family Law Act to execute all such documents in the name of the property in default and to do all such acts and things necessary to give validity and operation to the said orders.
9.In default of the Respondent doing all acts and things and executing all such documents as are necessary to give effect to these orders within 14 days that of an obligation to do so is required under these orders and on the Registrar being satisfied of such failure or neglect or default by the Respondent by way of an affidavit evidence only, a Registrar of this Honourable Court at Melbourne is appointed pursuant to section 106A to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to the said orders and the parties in default pay to the other party to this application that party’s costs and disbursements on an indemnity basis.
10.Such further orders as this Honourable Court deems appropriate.”
The mother filed her response on 20 February 2012 which sought the following orders:
“PARENTING
1.That the husband and wife have joint parental responsibility for the long term care, welfare and development of the child X born (omitted) 1998.
2.That X live with the wife.
3.That X spend time with the husband as agreed between the parties and failing agreement:
(a)for the third and sixth weekend of each gazetted Queensland School Term from 9 pm on Friday until 6pm on Sunday;
(b)For the first week of the gazetted mid-year Queensland School Holidays;
(c)For the gazetted Queensland Christmas and long summer school holidays from 2 pm Christmas Day until 6pm on 18 January; and
(d)On the Queen’s birthday weekend from 9pm on Friday until 6pm on Monday.
FINANCIAL
4.That the husband be responsible for the payment of all airfares associated with X spending time with the husband.
5.Until 30 December 2016, the husband shall pay spousal maintenance to the wife as follows:
(a)at the rate of $2,088 each month to be paid monthly in advance by way of electronic transfer on the 1st day of each month to a bank account nominated in writing by the wife.
(b)the annual rate of spousal maintenance paid by the husband to the wife pursuant to Order 5(a) increase each year on 1 July in accordance with any increases in the consumer price index for the City of Brisbane.
(c)the husband shall pay all medical, dental, optical, orthodontic health expenses for X which are not paid or reimbursed by Medicare or private health insurance.
6.That pursuant to section 116(1)(b)of the Child Support Agency (Assessment) Act 1989 there be a departure from administrative assessment of child support payable by the husband to the wife for the child, X (X) born (omitted) 1998 (X).
7.That pursuant to section 117 of the Child Support Agency (Assessment) Act 1989 there be a departure from the administrative assessment of child support payable by the husband to the wife for the child X born (omitted) 1998 (X) as follows:
(a)for the period from 27 February 2012 to the later of X attaining the age of 18 years or completing secondary school:
(i) the amount of child support assessed by the Child Support Agency pursuant to assessment; and
(ii) the further sum of $12,000 per annum, payable by monthly instalments in the sum of $1,000 each month to be paid monthly in advance by way of electronic transfer on the 1st day of each month to the bank account nominated in writing by the wife.
(b)The further sum of child support payable by the husband for X pursuant to Order 7(a)(ii) will increase from 1 July each year, in accordance with variations in the consumer price index for the City of Brisbane.
8.Until further order, the husband shall pay to the wife, by way of child maintenance for the child Y (Y) born (omitted) 1996 in the sum of $1,896 each month to be paid monthly in advance by way of electronic transfer on the 1dst day of each month to a bank account nominated in writing by the wife.
9.That the parties assets and liabilities be divided:
(a) 80% to the wife; and
(b) 20% to the husband.
10.There be an allocation to the wife from the husband’s superannuation entitlements pursuant to section 90MT(4) of the Family Law Act 1975.
11.That the husband pay the wife’s costs.
12.Such further or other orders as this Honourable Court deems appropriate.”
The matter came before the Court for a first Court date on 22 February 2012. Both parties were represented.
Section 11F Oral Report
On the first Court date, 22 February 2012 the Court had the benefit of an oral report from the family consultant as a result of an order made pursuant to section 11F of the Act that day which was:
“HIS HONOUR: Ms C, can you please state your full name, position and professional address for the purposes of the transcript?
THE WITNESS: Yes, your Honour. Ms C, (omitted), Melbourne and family consultant.
HIS HONOUR: Thanks, Ms C. Now, Ms C, were you pursuant to an order made under section 11 of the Act earlier this day asked to meet with Mr Maddox and Ms Maille.
THE WITNESS: Yes, your Honour, I was.
HIS HONOUR: And did you do so?
THE WITNESS: I did, your Honour.
HIS HONOUR: And before doing so did you, Ms C, have an opportunity to familiarise yourself with the material on the court file?
THE WITNESS: I had a very brief and quick look at the file, your Honour. I got the file at just after 11.
HIS HONOUR: Yes.
THE WITNESS: Yes.
HIS HONOUR: Yes, okay. All right. Now, Ms C, you’ve been in court when you heard me explain to the barristers for each of the parties how your report will proceed, so unless there is anything else I will ask you to deliver your report.
THE WITNESS: Thank you, your Honour. Your Honour, pursuant to section 11F I saw Mr Maddox, who likes to be known as Mr Maddox, and Ms Maille this morning from between the hours of about 11.15 and 1 pm. And this was in relation to their son, X, who likes to be known as X aged 13 years 10 months. The parents separated on 19 September 2010. At the time they were both living in Melbourne with X, who was going to (omitted) High School and he’s in what’s called the middle - middle year’s (omitted) program. X is a - or X is a talented (omitted) player, (omitted) player, and is in - well, you know, his ability is quite in the elite level. So the mother left the marriage and went to Brisbane, which is where her maternal family is and where the children were born in around September 2010 and X remained in Melbourne while the mother established housing in Brisbane and X completed his school year. X went to live with his mother in January 2011 and remained there visiting his father on a regular basis for school holidays and when (omitted) or academies were in Melbourne. And in 25 November 2011 before the school year had finished he went to Melbourne to participate in a (omitted) tournament, as I understand it, and he was due to go back to his mother’s for Christmas and to be with his half-sister, Y, who is currently this year in year 11 at a boarding school in (omitted) New South Wales.
The father rang the mother on 19 or 20 December and said he wasn’t returning X because X wanted to stay in Melbourne and that was also the day that he filed his application with the court. So basically the mother has not spent any time with X since 25 November 2011. She has phone contact and more recently some Skype contact. The mother would like X returned to her care and for him to begin school again in Brisbane and spend time with his half-sister Y. The father wants X to remain with him in Melbourne as he believes this is what X wants. There are no agreements reached, your Honour, because both parents want something different of X.
The issues impeding - or the issues in dispute are with which parent X should live and in which state. The issues impeding the resolution are the parents’ inability to prioritise X’s needs and their lack of an effective communication with a focus on what’s in X’s interests. There are also quite significant financial and property issues yet to be resolved, which always seem to impact on parenting issues, from my experience, your Honour. There are no - none of the usual family safety factors, but I would have to say that the emotional abuse caused to X through his parents’ reluctance to present a cooperative united parental stance regarding his needs probably weighs heavily as a safety factor for this 13 year old boy.
X attends (omitted) College in Brisbane. It’s a public school. When the parents separated and after much discussion they seemed to, in principle, agree that X would remain with his mother and they would review the situation at the end of 2011. It seems to me, your Honour, prior to X remaining with his father the arrangements were fairly flexible and seemed to work to also accommodate, you know, X’s (omitted) both in Melbourne and Brisbane, because X travels a lot with the (omitted) and currently he’s in (omitted) at a (omitted) academy and he will be there - or a tournament and he will be there until Sunday.
So the father, as I understand it, didn’t consult with the mother about X remaining in Melbourne, rather rang her and said, “X wants to stay with me so he’s going to”, and unilaterally enrolled X at (omitted) Secondary College, which is where he had been previously. He attended there in 2009 and 2010 when the parents lived in Melbourne. The father is (occupation omitted) and (omitted) at (omitted) University, which is located in (omitted), but is required to travel to all campuses. His work over the years has seen the family live in seven different places, including (omitted) in the United States of America. Currently, the father drops X at school every day. X makes his own way home with a bus or a tram, on public transport, with often the father and X arriving home at the same time, but X does have a key in case his father is not home.
The father said he and X try to be home together, at least, two nights a week. X attends (omitted) coaching three nights a week from 5 until 7 pm. The father indicated he undertakes all of X’s care needs, although his ability and commitment to these tasks was fiercely disputed by Ms Maille. According to the father X has spent a year telling him he wanted to remain in Melbourne. Ms Maille does not currently work outside the home, but she is pursuing opportunities for further studies and/or work in the (omitted). Ms Maille was upset she has not spent any time with X and cried at different times throughout the interview.
Ms Maille believes that X is ambivalent about what he wants. She also believes that X is relieved that he’s in (omitted) and it is her perception that X is pressured by the father’s demands. She believes X internalises his feelings. X has had difficulties and I believe still does with aggressive behaviours which he acts out on the (omitted) and with PlayStation games. For example, I think it’s the (omitted), which is ‑ ‑ ‑
HIS HONOUR: (omitted)?
THE WITNESS: Pardon?
HIS HONOUR: (omitted).
THE WITNESS: Yes. Yes.
HIS HONOUR: Yes, the abbreviation.
THE WITNESS: Yes. So both parents have new partners, but do not live with them, however, they are both involved with X’s life and X knows both of them. Would you like me to read out recommendations, your Honour?
HIS HONOUR: Yes, please.
MR WILSON: I object, your Honour.
HIS HONOUR: Sorry, could you wait outside for one moment, Ms C.
<THE WITNESS WITHDREW [2.42 pm]
<Ms C, RECALLED [2.53 pm]
HIS HONOUR: Sorry for that interruption, Ms C. Now, you were at the point in your report where you were going to proffer some recommendations.
THE WITNESS: Yes, your Honour. Now, there is a limitation, your Honour, because X is not here to put forward, you know, his voice, and although he does have a voice, his choices are still – can still be limited, and it’s my recommendation that X is returned to his mother’s care in Brisbane, and he continues to attend school there, and he spends regular time with his father during school holidays and weekends when appropriate for (omitted) in Melbourne and at any other times as agreed. Both parents to have equal shared parental responsibility for X.
Both parents to maintain the focus on X’s education, and that a review of the current – a review of the parenting arrangements, if X is returned to his mother’s care, when he is 16, and more will be known about X’s continued commitment to (omitted) professionally and his potential ability to become a professional (omitted). And I think post-separation parenting programs would be useful for both the parents, but I would have to email ..... that information through, because I haven’t explored what’s available in Brisbane.
HIS HONOUR: All right. Nothing else at this stage?
THE WITNESS: And that, if there is no – you know, that it may be useful to have a child-inclusive to hear X’s views about why he wants to remain living with his father.
HIS HONOUR: All right. Nothing else at this stage?
THE WITNESS: Nothing I can think of, your Honour.
HIS HONOUR: All right. Thanks, Ms C. All right. Mr Wilson.
<CROSS-EXAMINATION BY MR WILSON [2.56 pm]
MR WILSON: Thank you, your Honour.
Ms C, you said it may be useful to have a child-inclusive with X to hear his views; is that right?‑‑‑I did.
Yes.Okay. Now, would you agree with me that we’re well into term 1 at the moment – term 1 of school?‑‑‑Yes. Yes, that’s And rather than disrupt X’s schooling, and before his schooling is disrupted by a moved back, wouldn’t it be a good idea to hear what X has to say for the sake of a week or two if we could organise it?‑‑‑Yes. I don’t have any issue with that, and in fact I would recommend that any kind of move is delayed until 30 March, which is the end of first time. But having said that, I think X needs to be able to see his mother.
Yes.So arrangements could easily be made for X to be seen between now and 30 March, the end of term 1?‑‑‑I would imagine so. I’m not in charge of diaries, sir, but yes.
Now, can I just ask you, when – before the objection and before you were asked to go outside and you told us what you told us, you said, I think, words to the effect that the father did not consult with the mother about the decision for X to stay in Melbourne; is that right?‑‑‑That’s my understanding, yes.
Can I ask you where you got that understanding from?‑‑‑From the quick scanning of the information I read in the affidavit, and from the mother; that she was informed.
If you read the mother’s 48-page affidavit, you will see that mentioned about three or four times, won’t you: that she wasn’t consulted?‑‑‑It’s possible I would. I didn’t read the whole affidavit, because I didn’t have time to do that.
No.But do you see – did the mother tell you anything about the two mediations that the parties went to in the second half of last year?‑‑‑No.
See, they went to a mediation in, I think, September 2011 ‑ ‑ ‑
HIS HONOUR: Sorry, this is on affidavit?
MR WILSON: Yes, your Honour.
HIS HONOUR: Right.
MR WILSON: In fact, it is in the mother’s 48-page affidavit.
HIS HONOUR: Right. Okay.
MR WILSON: Even the mother says they went to a mediation in September last year, and then another one in October last year. And my client says in his affidavit that they went to the mediation to talk about X’s desire to live in Melbourne with his father.
Ms O:Well, your Honour, I object to that, because my client is – your Honour ‑ ‑ ‑
HIS HONOUR: Do you want Ms C to wait outside? Ms O: Yes, that would probably be best, your Honour.
HIS HONOUR: Sorry, Ms C.
Ms O:Thank you. I’m sorry for the disruption to the witness.
<THE WITNESS WITHDREW [2.59 pm]
HIS HONOUR: Yes, Ms O.
Ms O:Your Honour, it’s just remarkable to me that my learned friend is asking this witness a question about what happened at mediation, if that’s what the question. It’s just remarkable to me.
HIS HONOUR: We haven’t heard all of the question yet, so it seems your objection is premature.
Ms O:Well, your Honour, just so long as my friend wasn’t going there. My understanding was that the question was about that.
HIS HONOUR: Well, I’m sure Mr Wilson wouldn’t seek to lead evidence about matters which were confidential.
Ms O:Well, that’s why I say it would be remarkable to me.
HIS HONOUR: And perhaps it’s keenness on your part to ensure that that doesn’t happen, but I have got no reason to think that Mr Wilson would deliberately do that, so ‑ ‑ ‑
MR WILSON: Thank you, your Honour. If Ms C could return.
HIS HONOUR: Yes. Thank you.
<Ms C, RECALLED [3.00 pm]
<FURTHER CROSS-EXAMINATION BY MR WILSON
HIS HONOUR: I know it seems like you’re a jack-in-the-box this afternoon, Ms C, but please bear with us. We apologise for the interruptions?‑‑‑Thank you, your Honour. MR WILSON: Ms C, I know you had very little time to read the affidavit material, and it’s quite long. Can I just read to you what my client says in paragraph 22 of his first affidavit. He said:
X always maintained that it was his intention to return to Melbourne to live with me at the end of 2011, and he had made his feelings known to his mother. However, by September 2011, when the issue was addressed between myself and the respondent, she stated that she was no longer agreeable to letting X have his way on this issue and letting him go to Melbourne. In an attempt to resolve this issue, we both attended family conflict resolution mediation in September 2011 but could not resolve the dispute. We followed this up with another session on 28 October 2011 with Ms W, family dispute resolution practitioner. Again the mediation was unsuccessful as the mother was not prepared to accept the boy’s wishes.
Now, can I just ask you, if any part of that is true, it’s not really very helpful for the mother to say, “I wasn’t consulted about X staying in Melbourne,” is it?‑‑‑No.
No.And you would agree with me, wouldn’t you, that one of the risks in this case is that X feels as strongly about wanting to live in Melbourne as his father describes in the material, isn’t it; that this is a long-held wish?‑‑‑Well, I haven’t read all the material, and I haven’t had the opportunity to meet with X and hear first-hand his own views, so ‑ ‑ ‑
I know you can’t tell us what’s right and what’s not, but it is a risk, isn’t it?‑‑‑But according to what you have read out, it seems that it would be a long-held view, and the father did say that, you know, there was, you know, some discussion that they would review it at the end of 2011, and I did note ‑ ‑ ‑
You did note that?‑‑‑Yes, that.
Can I just ask you about the risks for X’s emotional adjustment. If it is – I know you can’t say whether it is, but if it is something that X feels so strongly about, his emotional adjustment is at risk if his voice is ignored, isn’t it?‑‑‑It’s possible, yes.
Well, can I ask you, a boy at the age of 13 – he is going to be 14 in April – he is at an age where he might feel very strongly about something like this; isn’t that right?‑‑‑Yes.
And he doesn’t yet have the maturity to accept readily a rejection of his views, does he?‑‑‑Well, according to both his parents, X is very – I mean X, sorry – is very mature at a number of levels, but emotionally his mother said he was functioning like a nine-year-old, and his father didn’t make comment on his level of emotional maturity.
Well, in fairness, given the time constraints, you didn’t ask him. You saw my client first; you saw the mother second; isn’t that right?‑‑‑Yes. So there wasn’t the facility to go back and check with him what he said about it?‑‑‑There wasn’t that ‑ ‑ ‑
No.But can I just ask you, as a generality, there is a risk in this case, I suggest to you, that if X feels as though what he wants is just being completely ignored, that he could take that very badly, couldn’t he?‑‑‑Well, he could. He could. And ‑ ‑ ‑
He could become quite resentful, couldn’t he?‑‑‑He may. He may also do what people call vote with his feet.
Yes?‑‑‑Anything is possible – any of those responses by X.
And I take it from what you’re saying that that’s one of the reasons why you said a little while ago that it would be helpful to have X included and to have his voice heard?‑‑‑Yes.
Because he might then feel, even if he doesn’t get what he wants, he might then feel that he has been part of the process?‑‑‑Yes. And I think, because of X’s age, and he will have some ability to be able to not only put forward his views, but also to, you know, fairly explicitly state why as well.
Yes.You see, can I ask you this as a generality: if he does feel very strongly about staying with his father but he has a very close relationship with his mother, which is common ground on the material, he would almost certainly find it difficult to express that to his mother, wouldn’t he?‑‑‑He may, yes.
Well, that would be a normal position, wouldn’t it? If you feel very strongly you want to stay with one parent, at 13 going on 14, you would have difficulty explaining it to the other parent, wouldn’t you?‑‑‑He may have difficulty, yes.
So it all depends on how strongly X feels about it and to what extent he feels he can talk about these things with his mother?‑‑‑Well, I don’t know how much he can talk about it with his mother, but if he was given the opportunity to talk to an independent person, he may be able to voice his views ‑ ‑ ‑
See, if you were writing the family report in this case for a trial, I suggest, you would want to have probably a number of sessions with X, wouldn’t you?‑‑‑Well, normally family reports are – interviews are conducted in one day over – from 9.15 until 5 o’clock, and the report is written based on interviews with each of the parents, interviews with the child or children and observations of the child or young person with their respective parents and other important significant adults in their life.
Because all those things are important, aren’t they?‑‑‑They are important, yes.
Yes.And during the course of that one day, you might speak to a child like X several times?‑‑‑I would probably speak to X twice.
Yes.In formal interview, but you would have other – during the course of people coming in and out of the observations rooms and so on, you would be observing X and talking to him, wouldn’t you?‑‑‑I would observe him in coming in and out, but I wouldn’t necessarily talk to him in those situations, because for a family report, as for any matters that go through the court, things need to be very formal and structured and follow a pattern.
You see, I think you also told us that X has – I think I made a note correctly – difficulty with aggressive tendencies, and there was a reference to the game ‑ ‑ ‑
HIS HONOUR: Said to have.
MR WILSON: Yes, said to have. Can I suggest to you that information was supplied to you by the wife, wasn’t it?
HIS HONOUR: Her evidence made that clear.
MR WILSON: Yes. And without being critical of you, Ms C, in the limited time that you have had available, you have just got to take what people tell you, don’t you?‑‑‑Well, you take what people tell you and make an assessment of that.
Yes.Thank you. I have no further questions, your Honour.
HIS HONOUR: Ms O.
<CROSS-EXAMINATION BY MS O [3.09 pm]
Ms O:So, Ms C, I’m correct in understanding that, in meeting with the parties today and taking what they tell you, your recommendation is still that X should be returned to Brisbane to live with his mother?‑‑‑Yes.
Yes.Thank you. And can I just ask you, just in relation to his wishes, I’m correct in saying, aren’t I, that this case is about a lot more than his wishes, isn’t it?‑‑‑Sorry, I ‑ ‑ ‑
This case – the situation to be resolved – is about a lot more than a 13-year-old boy’s wishes, isn’t it?‑‑‑Well, it’s also about property and financial things, but that’s not something that I necessarily – I don’t know about that.
But in terms of his placement, where he lives, how often he sees the other parent, the specific issues arising between the parents – it’s about so much more than his wishes. They are but one factor, aren’t they, in your thinking?‑‑‑Well, I mean, his wishes are the feature of this being asked to speak with the parents today, because the issue, as I understand it, is about where X – with which parent and in what state X is going to live, and both parents are saying that they want him to live with them, and X has expressed, according to his father, that he wants to live with him, and according to his mother, is ambivalent and trapped.
Yes.And you have no reason to doubt my client’s honesty?‑‑‑I guess not.
And likewise for the husband in these proceedings?‑‑‑Pardon?
And likewise for the husband in these proceedings?‑‑‑Yes. I mean, people are saying what they feel and what they believe is in X’s best interest.
All right?‑‑‑My thinking is actually that neither parent was really able to focus, you know, totally on X’s best interests. You know, there were a lot of other issues related to them as adults and them as, you know, partners, ex-partners, that were sort of meshed in with what X wants.
Your Honour, I don’t have any further questions, because I will address you as to the relevant matter in submissions, really.
HIS HONOUR: I have a question. It arises out of Mr Wilson’s cross-examination. Ms C, as I understood you to say in response to a question from Mr Wilson, you were asked whether it was better to hear what X says, and your response was yes, you agreed with that, and then you were asked whether it was better for him – that is, X – to stay where he was till that had happened, and as I understood your answer, it was that any move along the lines that you recommended be delayed until the end of term 1. And then you were asked whether it was possible for you to see X before then, and you said that, whilst you weren’t in charge of the diary, you believed it could be; is that right?‑‑‑Yes, your Honour.
All right.Okay. Anything arising from that? Mr Wilson?
MR WILSON: No. Thank you.
HIS HONOUR: No. Ms O?
Ms O:No. Thank you, your Honour.
HIS HONOUR: All right. Well, thank you, Ms C. A transcript of your evidence will be ordered and provided to the parties. And I can inform you, Mr Wilson, and you, Ms O, that – I don’t think term 1 finishes till the 30th; is that right? An appointment can be arranged for the 26th. I just throw that out there at this stage. Thanks, Ms C?‑‑‑Thank you. Thank you, your Honour.”
Interim consent orders
At the conclusion of that report the matter was stood down. The parties then handed up the following interim consent orders:
“1.That the Husband and the Wife forthwith sign all documents and do all things required to:
(a)accept the offer from Mr A to purchase the property situate at and known as Property N, USA (“the US property”) in the terms set out in the written offer a copy of which is annexure “PDM 2” to the Husband’s affidavit sworn 17 February 2012 and filed 20 February 2012 (“the offer”);
(b)enable the US property to be sold in accordance with the terms of the offer (“the sale”);
(c)enable both parties to have:
(i) the joint conduct of the sale; and
(ii) access to all documents arising from the sale as they come to hand;
(d)pay out and discharge the two mortgages secured on the US property from the sale price at completion of the sale;
(e)pay the costs and expenses of the sale from the sale price at the completion of the sale; and
(f)thereafter divide the net proceeds of the sale equally between the parties and cause each party to be paid their half share, such payments to be characterised by the trial judge.
2.That pending completion of the sale the Husband:
(a) be entitled to receive the rent from the US property; and
(b) pay and be responsible for the instalments falling due to be paid on the two mortgages secured on the US property.
3.That each party do all things required to enable an assessment and report to be completed by Ms D psychologist as to the best interests of the child X (X) born (omitted) 1998 in good time for the adjourned hearing and in particular attend upon Ms D with X on 6 March 2012 and such other times as she may request.
4.That the cost and assessment of the report be:
(a) met by the Husband in the first instance; and
(b)reimbursed to the Husband from the net proceeds of the sale of the US property before those proceeds are divided between the parties.
5. That all extant matters be adjourned to 23 March 2012 at Dandenong.
6.That until the conclusion of the adjourned hearing:
(a) X reside with the Husband at all times other than those in (b);
(b) X reside with the Wife:
(i) in Brisbane from the afternoon of Friday 2 March 2012 until the afternoon/evening of 4 March 2012 and from the afternoon of Friday 9 March 2012 until the afternoon/evening of Monday 12 March 2012 with the Husband being responsible for arranging and paying for X’s return flights to Brisbane on those weekends; and
(ii) in Melbourne at all reasonable times when the Wife is in Melbourne including but not limited to the day before and the day after the adjourned hearing.”
The matter was adjourned to 23 March 2012 for interim hearing. The father was represented by Mr Wilson of Counsel and the mother was represented by Ms Stoikovska of Counsel.
Material relied upon
The father relied on:
a)initiating application filed on 20 December 2011;
b)affidavit filed 20 December 2011;
c)financial statement filed 20 December 2011;
d)application in a case filed 17 February 2012;
e)
supplementary affidavit to an application in a case filed
20 February 2012; and
f)minute of orders, marked A1.
The mother relied on:
a)response filed 20 February 2012;
b)affidavit filed 20 February 2012
c)financial statement filed 20 February 2012;
d)written submissions filed 22 March 2012, marked R1 and;
e)two other exhibits marked R2 and R3.
I have read and considered that material.
Family report
Pursuant to orders made on 22 February 2012 and in preparation for the interim hearing, a private family report was prepared by Ms D dated 16 March 2012 and is in evidence before the court and undercover of an affidavit 22 March 2012 (“the Report”). The Report contained the following:
“Evaluation:
96.X expresses a wish to live in Melbourne; giving reasons such as that he will have better (omitted) prospects in Melbourne (noting that Mr Maddox acknowledges this is a 13-year-old’s perception); that he is more familiar with Melbourne, including with the public transport system.
97.Essentially these are the extent of X’s reasons to live in Melbourne. There is no evidence that he wants to live in Melbourne because he does not want to live in Brisbane. Other than when he has had disputes with his mother, and told her he will go and live with his father, there is no information that X was not settled in Brisbane.
98.One of the concerns here is that some bad learning is presently being given to X: such that he can threaten his mother that he will live with his father, and then get what he thinks he wants. This almost ensures future difficulties for each parent when needing to discipline X.
99.A more appropriate learning strategy is for X and Ms Maille to deal with their disputes; something that could lead to a positive outcome for both. It seems, in any case, there have not been many serious disputes. Ms Maille attends a psychologist from whom she can continue to seek advice.
100.X’s ‘wish’ to live in Melbourne presents more as a case of situational reaction. X was angry, understandably, when his mother damaged his PlayStation, and reacted as he did. Ms Maille also reacted badly, and regrettably: but, in the usual course of family life, these things happen from time to time.
101.Another concern is that, since 25 November 2011, X had had no physical contact with his mother until the recent orders. The child’s response to her request to see him that, ‘If I can live in Melbourne, I’ll see you’, is another example of inappropriate learning for this young boy.
102.Furthermore, there is no indication from discussion with X, that on 25 November 2011, he knew he was not going to return to (omitted) State College in Brisbane.
103.Both parents are good parents; but with a different focus, in terms of their son’s future. Mr Maddox is calm and committed to his son’s care. Ms Maille is perhaps more emotionally fragile; possibly, understandable, given her current position.
104.Both parents are experiencing complex, unresolved financial issues that may also be impeding them. However, while these issues remain undecided, and continue to impact emotionally and financially on each parent, it is very important that X experience stability and predictability in his living arrangements.
105.In terms of X’s family life, Mr Maddox claims X’s relationship with his half-sister, Y, is ‘not close’. X, Y, and Ms Maille do not agree with Mr Maddox about this. From observation and discussion with X and Y they do appear to enjoy a close, supportive relationship.
106.While Y continues, from her perspective, to have a good relationship with her father, Mr Maddox, she does spend more time with her mother in Brisbane on term holidays. X’s time with his sister would therefore also be reduced, if X lived in Melbourne.
107.Ms Maille’s contention that X is emotionally immature; is more ‘like a 9-year-old’ who ‘would rather play all day’ seems accurate. And it is not evident that Mr Maddox is readily available to provide the nurturing that this boy still requires. X seems too young to cope with the independence he will necessarily be given in his father’s household.
108.X impresses as being emotionally too young to make his own decisions, or have them relied upon by his parents. X is young enough to require daily guidance and direction. In the psychologist’s opinion it is not appropriate for X to think that a court of law has relied on his wishes in this instance; particularly, in the absence of other information that would give weight to those wishes.
109.The problems experienced by the parents and X, as stated above in the report, seem more situational, than evidence of any long-term pathology. X loves both parents and is not aligned with either of them. He has no particular issues with either parent and there is no information that Ms Maille has provided anything but reliable, consistent care for X to date.
Recommendations:
110.That both parents have equal shared parental responsibility for X.
111.That X reside with his mother in Brisbane.
112.That X spend regular time with his father during the school term and school holidays; in addition, when X is in Melbourne for (omitted) and when Mr Maddox may be in Brisbane, and at any other time as agreed.
113.That Mr Maddox and Ms Maille attend post-separation parenting programs in their respective cities.
114.That Ms Maille continue to attend upon her psychologist for personal and parenting advice and support.
At the interim hearing on 23 March 2012 the family report writer was not called to give evidence and be cross-examined. Counsel for each of the parties told the Court they wanted the matter to proceed by way of submissions.
Father’s submissions
At the interim hearing the father’s submissions were that the Court should disregard or place no weight on the Report and its recommendations. It was submitted that the Report was deficient as:
·The father argued the Report had failed to take into consideration that there was what he said was an agreement for the child to live with the mother in Brisbane for one year and the mother had not denied this comment in her affidavit; and
·The father argued the Report had failed to take into consideration this argument and the efforts he’d made in mediation and that he said the child’s views to remain in Melbourne hadn’t been respected in that process and it had been unsuccessful.
·It was argued the Report was deficient as this agreement he asserted existed was at the core of the dispute. It was submitted that it was clear from the Report the child told the report writer what we wanted and where the child turns 14 next month his views should not be dismissed as it was argued they had been in the Report.
·It was also argued the report writer had uncritically accepted what the mother had asserted in regards to the child’s emotional maturity, failed to speak to the child’s teachers or the psychologist the mother had seen as referred to in the Report, and it was asserted suffered from a number of factual errors and the Court should place little or no weight on the Report.
The father through his Counsel otherwise made submission as to the interim orders he sought.
Mother’s submissions
The mother relied on her written submissions filed on her behalf which provided:
“Respondent Wife’s Proposals
The Respondent Wife seeks interim orders as set out in her response filed 20 February 2012, paragraphs 5 to 13 inclusive.
Issues in dispute for the Interim Hearing
1.With whom the child shall live until further order.
2.The time the child shall spend with the other parent.
3.Which parent shall be responsible (and/or in what proportion) for travel costs to facilitate time spent, and X’s (omitted) obligations including training, (omitted) and associated reasonable travel.
4.Spousal maintenance.
5.Child support for the child Y.
6.Transfer of proceedings to Brisbane.
Primary Considerations:
Sec 60CC(2)
(a)From the evidence in the Wife’s affidavit, and corroborated by X (see paragraph 67, report Ms D), the Wife has been the parent primarily responsible for his day to day care. He has a close bond with the Husband with whom he shares a strong interest in (omitted). X would benefit from maintaining a meaningful relationship with both parents.
(b)While the Husband alleges X has been exposed to the Wife’s excessive use of alcohol and she has been “abusive” (paragraph 25 Husband’s affidavit filed 20 December 2011), historical incidents alleged do not support the allegation that X was present or witnessed any of the alleged incidents. No incident of abuse is particularised. The Wife in any event denies some of the allegations, and/or the tenor of some others. Moreover, Mr D reports at paragraph 73: “X also did not support the view that his mother is an excessive alcohol user.”
The Wife asserts “neglect” by the Husband of X when living with the Husband, in the sense that X is left alone for extended periods including evenings while his father is engaged in employment or his own (omitted) pursuits. The Husband only partially answers this allegation that X is unsupervised for extended periods, in paragraphs 12 and 13 of his affidavit of 20 February 2012. He does not respond at all to the Wife’s allegations in respect of the Husband’s work commitments outside of Melbourne and overnight arrangements for X in those circumstances.
Sec 60CC(3)
(a)While X has expressed to his parents and Ms D his wish to live in Melbourne, despite his nearly 14 years of age, he is not judged by the Wife as being a mature child. This view is corroborated by Ms D (paragraphs 79 and 96 to 101, 107 to 109 inclusive) who also describes him as “emotionally immature”, requiring “daily guidance and direction” and that “his views are not reliable.” The psychologist also expresses concern that X’s wish to live in Melbourne is situational. It is used against his mother as a lever or threat which, if fulfilled, “almost ensures future difficulties for each parent when needing to discipline X”. Despite his biological age, no weight should be given to his expressed view.
(b)Ms D reports that X “loves both his parents and is not aligned with either of them. He has no particular issues with either parent…” (paragraph 109). Despite the Husband’s assessment to the contrary, X has a close, supportive relationship with his half-sister Y.
(c)The Wife has exhibited a past and current willingness to facilitate and encourage a close and continuing relationship between X and his father. After moving to Queensland with X, arrangements were made with the Husband to spend regular weekend and holiday time with X in Melbourne. X has communicated freely with his father in between visits. While the Wife does not agree that X live with his father full time, there is no allegation by the Husband that the Wife has in any way thwarted, not facilitated, or, not encouraged a close and ongoing relationship between X and his father. The Wife makes proposals that if returned to Queensland, X should continue to spend regular time with his father, including extended holiday time.
Conversely, the Husband has not exhibited a willingness or ability to facilitate and encourage a close and continuing relationship between X and his mother.
·The Wife asserts at paragraph 35 of her affidavit an agreement between her and the Husband that X would stay in Melbourne for specified dates in November/December and return to Brisbane on 18 January 2012. Although he alleges X expressed a desire to stay in Melbourne, the Husband does not deny, either in his affidavits or to Ms D, the existence of the agreement.
·He does not deny retaining X in Melbourne despite the Wife’s wishes to the contrary. Until 2 March 2012 (save for as a consequence of orders made on 22 February 2012) X spent no time with his mother since 25 November 2011; and with Y since September 2011. The Wife asserts her telephone and Skype conversations with X are truncated when the Husband is present.
·The Husband proposes no regular defined time for X and his mother in the event X resides in Melbourne, other than it be “geared around X’s (omitted) commitments” (Ms D paragraph 42) “…when he’s travelling”.
(d)An order requiring X to return to Brisbane is likely to have the effect of reinstating his close relationship with both his mother and his step-sister Y. According to Ms D, it is her professional opinion that X would prefer his parents to make the decision about his future (paragraphs 75 and 79). It is submitted there is uncontradicted evidence that he integrated well into his school community in Brisbane and did well over a range of subjects. The school caters for his (omitted) needs and the Wife facilitated his attendance at (omitted) as necessary. The Wife facilitated regular time with his father. It is submitted there is no evidence there is likely to be any detriment to X if there is a change to his current circumstances. The evidence supports the proposition that it is in his best interests to return to Brisbane.
Significantly, if an interim order was made changing his living arrangements as they existed since separation, Ms D makes the observation it would be learning ”that he could get what he wants, undermining the future ability of his parents in their discipline of him.” According to the Husband “the son/mother relationship, there has been ‘a little bit of estrangement in the last while’” (Ms D paragraph 36). In the absence of evidence that the Husband has done anything to promote and encourage the son/mother relationship; evidence of the psychologist that X is emotionally functioning at a lower age; he is undecided and unsure about “deeper issues” (paragraphs 76 and 77), it is submitted to change his living arrangements on an interim basis is likely to have a detrimental impact not only on his relationship with his mother, but empower him unreasonably as against both his parents.
(e)The Wife is reliant on government benefits for her living expenses. She has very limited income and resources which she can utilise to spend time with X in Melbourne. Moreover, as a consequence of the Husband’s apparent expectations that X’s time with his mother will have to balance with X’s (omitted) commitments, it would create a practical difficulty in X’s ability to spend time with his mother on a regular basis – it is likely to significantly limit X’s time with his mother.
(f)While it is evident the Husband has the capacity to provide for X’s financial needs and (omitted) passion, it is submitted he is not better placed to meet X’s emotional and intellectual needs. It is submitted the evidence would indicate the Husband has exhibited a limited capacity to understand his son’s emotional maturity and the strength of relationship between X and his sister. To the extent he acknowledges some estrangement between mother and son “in the last little while”, he has exhibited no capacity to encourage X to mend that situation or support the Wife in respect of discipline issues. Annexure “LMM-03” would confirm he condones his son’s aggressive behaviour towards his mother. He has encouraged X’s involvement with (omitted) at the expense of X’s academic education and his relationships with his mother and his sister (wife’s affidavit paragraphs 42 and 44, Ms D report).
The Wife on the other hand is described by Ms D as being “…very focussed on what X needs from a parent, and how a parent must provide for a child’s overall social, emotional and educational needs” (paragraph 63). She is a parent who would provide wider education choices (paragraph 62).
(g)While X is a male child, the Wife has the capacity to facilitate his reasonable attendance at (omitted) including his more casual interest in football. Not, however, to the exclusion of a broader education experience and/or relationships with other family members. Although biologically nearly 14 years of age, emotionally X functions at a lower age.
(h)Not relevant.
(i)It is submitted there is ample evidence the Wife has an appropriate and loving attitude to X and demonstrated positive parental responsibility.
·She has participated in and facilitated his education and extensive (omitted) commitments, including interstate.
·She has facilitated time between X and his father.
·She has participated with the Husband in mediation to attempt to resolve the parenting issues.
It is submitted while a loving parent, there is evidence the Husband has not demonstrated appropriate parental responsibility.
·He has not facilitated or encouraged time between X and his mother (prior to court orders) or his sister.
·He has, without the knowledge and consent of the Wife enrolled X in Melbourne schools and, despite specific enquiry by the Wife via his solicitor, provided no information to the Wife outside of his affidavit material.
·He appears to prioritise X’s and/or his own commitment to (omitted) over and above broader educational and relationship experiences.
·It is alleged by the Wife he has refused to pay for X’s (omitted) expenses in Brisbane or (omitted) he does not agree with.
·He has stopped the Wife’s access to funds which included funds for Y’s living expenses, limiting his financial commitment to the family to Child Support payments as assessed, for X only.
·He has unilaterally retained X in Melbourne against the wishes of the Wife, indirectly undermining her proper discipline of X.
·The Wife asserts he has limited availability and ability to supervise X.
(j)The Wife asserts various incidents of violence and physical intimidation directed at her (paragraphs 81, 82 and 176 Wife’s affidavit), including some recent aggressive, volatile behaviour by X towards her (paragraphs 84 and 85) condoned by the Husband.
(k)The Husband alleges an assault on him by the Wife in late 2011 in the presence of X. The Wife denies the characterisation of the incident.
(i)There are no family violence orders.
Not applicable in the context of an interim hearing.
Sec 60CC(4)
The Respondent refers to and repeats the submissions set out above as to the extent to which each parent has fulfilled or failed to fulfil the responsibilities of a parent.
Sec 65 DAA(5) Reasonable Practicability
The Husband resides in Victoria, the Wife in Queensland. It is submitted while the Wife has exhibited a capacity to communicate with the Husband and facilitated arrangements for X to spend time with his father, it is not reasonably practicable for an order for equal time or substantial and significant time as defined in S.65DAA(3). The Husband has acted unilaterally in respect of X’s living and schooling arrangements. He has not exhibited a capacity to communicate with or not facilitated X’s time with the Wife. If X were permitted to reside in Melbourne, it is not practicable for X to spend time and have a meaningful relationship with his mother.
In the circumstances, it is in X’s best interest that he return to live in Brisbane with the Respondent and spend time with his father.”
In oral submissions made on her behalf supplementing the written submissions on which she relied the mother described the father’s position and submission to the Court on the Report as staggering. It was submitted that this description of the father’s position was accurate given the interim orders, that the qualifications of the report writer were not challenged and the father had not chosen to call for the report writer to be cross examined.
In response to the criticisms made of her by the father for allegedly resiling from the alleged agreement the mother asserted that the father had not abided by what she asserted was an agreement for the child to return to spend time with her over Christmas in 2011.
The mother’s oral submissions criticised the father for allegedly exposing the child to the parent’s conflict, for providing an inappropriate parental role model, and failing to properly contextualise that the child’s views within the overall question of what was best for him. It was submitted there was sufficient material for the Court to be concerned the father was involving the child in the dispute.
The mother maintained she was able to offer the chid a more balanced and supportive environment and it was not in the child’s best interests to, as it was submitted the father did, say to the child it was all up to him – to allow this would be to invite constant change and was not appropriate or in the child’s best interests.
The mother noted there had been no criticism made of the s.11f Report and the recommendations made by the Report and the family consultant were consistent.
Approach to interim dispute
As I indicated at the beginning, these reasons concern a dispute over interim parenting orders. In Zabini & Zabini [2010] FamCAFC 10 Warnick J stated:
“1.The usual interim hearing for parenting orders involves fact-heavy material, full of contention that cannot be resolved on the papers, yet there is no cross-examination. Nor does any party usually bear an onus to assist a court in the determination of an application or response.
2.In such hearings, since the amendments to the Family Law Act in 2006, in reasoning to a conclusion as to the proper parenting orders, the court must follow one or other of prescribed paths. Yet the essential platform underpinning each of those paths is a detailed fact-finding process required by s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”).
3.Thus, a dilemma of labyrinthine complexity arises.”
The principles to be applied in the determination of an interim parenting proceeding have been set out in the Full Court's decision in the matter of Goode & Goode [2006] FamCA 1346. In following the “legislative pathway”, their Honours set out a procedure to be followed on an interim application, at [82] as follows:
“(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
In Marvel & Marvel [2010] FamCAFC 101, the Full Court discussed the difficulties associated with making findings on contested evidence, at the interim stage with reference to the decision in SS & AH [2010] FamCA FC 13 as follows:
“120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s.61DB).”
Consideration
The father’s interim proposal[1] at the end of the hearing on 23 March 2012 sought:
[1] see exhibit A1
“1.That until further order:
(a)the husband and the wife have equal shared parental responsibility for the child X born (omitted) 1998 (“X”);
(b)X reside with the husband.
(c)X spend time with the wife in Brisbane, Queensland:
(i) during First term school holidays from the morning of Saturday 31 March 2012 until the afternoon of Sunday 8 April 2012;
(ii) during the Mother’s Day weekend from the afternoon of Friday 11 May 20-12 until the afternoon of Sunday 13 May 2012;
(iii) during the Victorian Queens Birthday weekend from the afternoon of Friday 8 June 2012 until the afternoon of Monday 11 June 2012;
(iv) during Second Term school holidays from the morning on Saturday 23 June 2012 until the afternoon of Sunday 1 July 2012;
(v) commencing from the third term of X’s school for 2 weekends each school term from the afternoon of the Friday until the afternoon of the Sunday (or Monday if a public holiday in Victoria) being such weekends as the wife notifies to the husband in writing at least 60 days in advance of each such weekend;
(vi) during third term school holidays from the morning of Saturday 29 September 2012 until the afternoon of Sunday 7 October 2012;
(vii) during the long summer school holidays from the morning of Thursday 27 December 2012 until the afternoon of Monday 28 January 2013;
(viii) during 2013 for the same periods and on the same occasions as are specified in parts (i) to (vii) of this order and on the dates that best correspond to those periods and occasions in 2013; and
(ix) such other times as the parties may agree in writing;
(d)for the purposes of the arrangements for X specified in parts (c) and (d) of this order:
(i) the wife be responsible for arranging and paying for X’s flights to Brisbane from Melbourne on the dates and times specified and the husband be responsible for getting X on the flights so arranged by the wife and notified to him in writing at least 48 hours before the departure times;
(ii) the husband be responsible for arranging and paying for X’s flights to Melbourne on the dates and times specified and the wife be responsible for getting X on the flights so arranged by the husband and notified to her in writing at least 48 hours before the departure times.
2.The parties attend a conciliation Conference and made a bona fide endeavour to resolve the matters in dispute between them.
3.That all extant applications be fixed for a trial.”
I also refer to and note the interim orders sought by the father in the event the child was to live with the mother on an interim basis.
The mother’s interim proposal[2] at the end of the hearing on 23 March 2012 sought:
“The Respondent seeks interim orders as set out in her response filed 20 February 2012, paragraphs 5-13 inclusive.”
[2] see exhibit R1
Turning to the issue in dispute as is clear from the parties proposals the issue on an interim basis is whether the child should remain in Melbourne or return to live in Brisbane and depending on this the arrangements for the other parent to spend time with the child.
In relation to any agreed or uncontested relevant facts and save as set out above they are as follows. The family lived in Brisbane, USA, (omitted) and Melbourne. When the parties lived in Melbourne the child attended (omitted) College, During the course of the relationship the child’s half sister Y (from the mother’s previous relationship) lived with the parents but is now at boarding school in NSW.
Until the date of separation the mother was the primary carer for the child. The parties separated under the one roof and after the mother moved to Brisbane the child moved to live with her there where he attended (omitted) College in 2011.
The parties had an agreement to review this arrangement at the end of the year and pursued mediation during the course of 2011.
The child did not see the mother from November 2011 until after the interim orders in February 2012 and had been enrolled in (omitted) College by the father.
It was agreed the child had spent time with the mother since the last Court hearing in both Brisbane and Melbourne and largely in accordance with the interim consent orders.
The child plays junior competitive (omitted) and travels regularly to do so.
This is an interim hearing. It takes place in a shortened form. There is no time for cross-examination of the parties themselves. There is usually and there was in this case, insufficient time for all the available evidence. The parties, in all likelihood, given the urgent nature of the matter, have not had time to prepare the case as well as they might like. The Court cannot in an interim hearing make findings of fact about contested issues between the parties. However, the situation (which is of the parties own making) along with the degree of conflict or the dispute between the parents and the situation created in this case for the child as a result of that means that a decision must be made.
Turning then to the relevant factors set out in section 60CC of the Act, which is the pathway that the Court must follow to determine what interim orders should be made for the child on an interim basis and doing so in light of the material in this matter.
Before doing so, however, it is useful to note what the Full Court said in the decision of Hall & Hall (1979) FLC 90-713:
“In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a)There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC 90-098 at p. 75,447; Harris and Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
…”
Those comments have been subsequently approved in a number of Full Court decisions, including the decision Friscioni & Friscioni [2010] FamCA FC 108.
In relation to the Report, its recommendations and the criticisms made of it by and on behalf of the father I accept the Report is untested. However this is the case for affidavit material on which the parties rely. The s.11F Report at this stage is the only evidence that has been tested. It is possible that the Report’s recommendations through cross examination and the tendering of other evidence may change or the weight the Court places on it may be diminished.
However the parties were content for the matter to proceed by way of submissions the report writer wasn’t required for cross examination and subject to the above, I don’t accept the criticisms made of the Report such as they are. I note the Report on its face, as was made clear in the mother’s submissions, recognised the child’s views but made clear there are other the relevant considerations in determining the child’s best interests. This is a significant factor.
In Mazorski & Albright,[3] Brown J dealt with the “additional considerations” (in s.60CC(3)), prior to dealing with the primary considerations (in s.60CC(2)). Subsequent Full Court authority has approved of such an approach, saying that, it may help to focus the Court’s attention on relevant matters to be determined under s.60CC(2) if it first considers and makes findings about relevant factors under s.60CC(3).[4]
[3] (2008) 37 Fam LR 518
[4] see Collu v Rinaldo [2010] FamCAFC 53
Finally before turning to consider the relevant s.60CC factors I note that after the close of submissions Counsel advised the Court they were instructed that notwithstanding the dispute before the Court the parties had in any event agreed the child would be travelling to Brisbane over the Term 1 school holidays anyway for (omitted) and would be staying with the mother when doing so.
Additional considerations
The children’s expressed views and the weight those views should be given
The Report stated:
“96.X expresses a wish to live in Melbourne; giving reasons such as that he will have better (omitted) prospects in Melbourne (noting that Mr Maddox acknowledges this is a 13-year-old’s perception); that he is more familiar with Melbourne, including with the public transport system.
97.Essentially these are the extent of X’s reasons to live in Melbourne. There is no evidence that he wants to live in Melbourne because he does not want to live in Brisbane. Other than when he has had disputes with his mother, and told her he will go and live with his father, there is no information that X was not settled in Brisbane.
…
100.X’s ‘wish’ to live in Melbourne presents more as a case of situational reaction. X was angry, understandably, when his mother damaged his PlayStation, and reacted as he did. Ms Maille also reacted badly, and regrettably: but, in the usual course of family life, these things happen from time to time.”
The Report also said:
108. …X is young enough to require daily guidance and direction. In the psychologists opinion it is not appropriate for X to think that a court of law has relied in his wishes in this instance; particularly in the absence of other information that would give weight to those wishes..
109. The problems experienced by the parents and X, as stated above in the report seem more situational than evidence of any long term pathlogy. X loves both parents and is not aligned with either of them. He has no particular issues with either parent and there is no information that Ms Maille has provided anything but reliable, consistent care for X to date.
The wife submitted:
“While X has expressed to his parents and Ms D his wish to live in Melbourne, despite his nearly 14 years of age, he is not judged by the Wife as being a mature child. This view is corroborated by Ms D (paragraphs 79 and 96 to 101, 107 to 109 inclusive) who also describes him as “emotionally immature”, requiring “daily guidance and direction” and that “his views are not reliable.” The psychologist also expresses concern that X’s wish to live in Melbourne is situational. It is used against his mother as a lever or threat which, if fulfilled, “almost ensures future difficulties for each parent when needing to discipline X”. Despite his biological age, no weight should be given to his expressed view.”
I note what the father said in submissions on this issue.
The Full Court in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child depending on their basis and the maturity of the child. Importantly it was made clear the overall welfare of the child is the determining factor.
The problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background the Court will usually attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the Court and their long term implications. Ultimately the overall welfare of the child is the determinant (see Harrison v Woollard [1995] FamCA 30).
In this case age is a factor and the consistency of the views is also a factor. However there is also the issue of whether the child’s views have been influenced and that in any event those are but one of the miscellany of matters to take into account.
The family report writer interviewed the child. I intend to give the child’s views only limited weight. I note the Report’s recommendations and that this factor is in any event only one of many considerations. I am concerned the child’s views are in part a product of the parent’s dispute. In that regard I note the Report’s comments and that the child would prefer his parents decide. I intend to place weight on the Report in this regard.
The nature of the relationships between the child and each parent and other people important in their lives.
The Report stated:
“105.Both parents are good parents; but with a different focus, in terms of their son’s future. Mr Maddox is calm and committed to his son’s care. Ms Maille is perhaps more emotionally fragile; possibly, understandable, given her current position.
106.Both parents are experiencing complex, unresolved financial issues that may also be impeding them. However, while these issues remain undecided, and continue to impact emotionally and financially on each parent, it is very important that X experience stability and predictability in his living arrangements.
107.In terms of X’s family life, Mr Maddox claims X’s relationship with his half-sister, Y, is ‘not close’. X, Y, and Ms Maille do not agree with Mr Maddox about this. From observation and discussion with X and Y they do appear to enjoy a close, supportive relationship.
108.While Y continues, from her perspective, to have a good relationship with her father, Mr Maddox, she does spend more time with her mother in Brisbane on term holidays. X’s time with his sister would therefore also be reduced, if X lived in Melbourne.”
I note the mother’s submissions on this issue. Aside from the agreed facts referred to earlier the only other finding I can make at an interim hearing is that the child has a good relationship with both his parents.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
I note the parties submissions on this issue.
The mother criticised the father in relation to this factor whilst submitted she had exhibited a past and current willingness to facilitate a relationship. The father also criticised the mother by reference to what was referred to at paragraph 28 of the Report. I have more reservations about the father in relation to this factor than I do in relation to the mother.
Given the parties disparate allegations in relation to this factor it would appear these parties are approaching the matter through the prism of a battle for control over the child. However given the history referred to earlier since November 2011 I have less confidence in relation to the father on this factor.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from a parent or any other person with whom they have been living
The father’s submissions placed emphasis on this factor as did those made on behalf of the mother.
I am not satisfied the change in the child’s circumstances and living arrangements since November 2011 have been to his benefit and have concerns that an order providing for him to live with the father until further order will have an adverse impact on his relationship with the mother and note what the Report said in this regard.
The practical difficulty and expense of the child spending time with both parents
The distance between the homes will cause some difficulties and both parties proposals reflect this. Moreover it appears to be likely there will be practical difficulties with the parties negotiating the child’s time in the absence of Court orders and in any event around the child’s involvement with (omitted).
The capacity of each parent or other person to provide for the child’s needs
I note what the parties had to say in relation to this factor. I have concerns about the capacity of the father to provide for the child’s needs in light of recent developments and what was said in the Report.
The maturity, sex, lifestyle and background of the child and the parents
I note the criticisms made by the parties of each other in relation to this factor. Many of the considerations relevant to this factor have already been considered elsewhere in these reasons. To the extent there is any basis for concern arising from those matters I am satisfied they can be addressed by way of orders reflecting those recommendations made in the Report.
The attitude each parent has demonstrated to the responsibilities of being a parent
I note what the parties submissions were on this factor.
In light of the agreed history and recent events I have some reservations about the father in this regard and note the concerns mentioned in the Report. In this regard I refer to the submissions of the mother on this factor.
Any family violence
Whilst there are no family violence orders there is evidence that indicates this could be a relevant factor in this case though its not possible to make a finding one way or the other as both parties make allegations that could conceivably fall within the rubric of family violence.
Any other fact or circumstance
Save for the factors set out in the Act there are no other facts or circumstances that are relevant to the determination of this matter.
What orders would minimise the risk of there being further Court proceedings about the child
As these are interim proceedings and there appears to be an underlying and at least at this stage what could be protracted dispute over property casting a shadow over and distracting each of the parties from arrangements that would advance the best interests of the child either parties proposal is not likely to be preferred in this regard.
Primary considerations
The benefit to the child of having a meaningful relationship with both of their parents
I note the parties submissions in relation to this issue. The Act recognises the benefit to the children of having a meaningful relationship with both parents.
It is not in dispute that the child has had a meaningful relationship with both parents. I am concerned that were the child to live with the father until further order there may be more adverse consequences for his relationship with the mother into the future.
Both parties positions recognise the benefit to the child of having that opportunity into the future. However how both relationships with the child’s mother and father will be maintained and nurtured into the future will be a determination at final hearing.
The need to protect the child from physical or psychological harm
Whilst both parties make allegations about issues that could be relevant for the purposes of this factor (see page 2 of the mother’s submissions) I am unable to make a finding as to whether the child is at risk of harm from either parent and indeed to be fair to the parties they don’t allege that to be the case or to the extent it could be construed they did then their respective positions undercut such an argument.
S60CC(4) considerations
To the extent to which each parent has fulfilled or failed to fulfil, his or her responsibilities as a parent, including spending time with the child, participating in decision–making about the child’s welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child
As to the parenting of the child there is insufficient evidence before the Court as to whether the father or the mother has fulfilled their responsibilities pursuant to s.60CC(4) and (4A) and this will be explored at a final hearing.
I have otherwise already addressed many of the matters in relation to this consideration elsewhere in these reasons.
Parental responsibility
As discussed above, the presumption of equal shared parental responsibility applies.
However, for the purposes of this decision and pursuant to section 61DA(3) of the Act, it is appropriate in my view to exercise the Court’s discretion not to apply the presumption of equal shared parental responsibility on an interim basis. The material raises sufficient concerns that it would be inappropriate for the Court to safely apply the presumption of equal shared responsibility, at least in such a way as it was unlikely to impact adversely on the child’s best interests. In coming to that view I have noted what the parties have said in their written submissions on that issue, however, it was clear that their own material pointed the other way in terms of the Court making such an order.
Where the child is to live and what time to spend
Section 65DAA of the Act provides that, if a parenting order provides that the parents are to have equal shared parental responsibility for the child, the court must consider whether the children spending equal time or substantial and significant time with each of the parents would be in the best interests of the children.
I have found it is not appropriate to apply the presumption of equal shared parental responsibility. In relation to where the child should live and the time he should spend with the other parent regardless of where the child lives and the time he should spend with the other parent both parties agree it is not in the child’s best interests or reasonably practicable he spend equal time with both parents. The parties also agree the same applies with respect to substantial and significant time and I accept that’s the case.
Having regard to my discussion of the s.60CC factors above I think it’s important to put the child’s views in context. The issues raised are just not that different from concerns frequently expressed by all teenagers. These sorts of concerns are of course as was identified in the Report made more problematic in the context of separated parents who can’t or won’t provide a united front and the necessary guidance, direction and support that all children but especially children at this age and those dealing with separated families need.
In this case I am not satisfied the reasons for his views are considered or adequately explained reasons. Notwithstanding the submissions made on behalf of the father I have concerns about the background to this matter and how the child came to be living in Melbourne. I also have concerns about the instability he has weathered over the last 6 months and that it’s more likely than not this has been more a factor of the dispute between the parents. I have concerns regarding the child’s routine and believe its important that the child understand the decisions about where he should live and others including which school he should attend are adult decisions and am concerned that the behaviour of the father is this regard raised questions about his attitude to the responsibilities of parenthood.
In the circumstances and in light of the decisions of s.60CC factors and notwithstanding the criticisms made of the Report on behalf of the father I am satisfied orders seeking the child live with the mother in Brisbane from the beginning of Term 2 and spending time with the father in terms of the orders sought by him in that event are in the child’s best interests on an interim basis.
Other orders
That leaves the issue of the responsibility for airfares to facilitate that time the father sought the parties share the cost equally the mother sought that the father meet the costs.
As was referred to in the Report herewith every issue in this case are unresolved financial issues and what on the submissions I have heard the unrealistic expectations and positions of the parties.
This issue brings into consideration the additional considerations in ss.60CC(3)(c),(i) and 4(c).
Both parties filed financial statements. The father was critical of the mother for her position on this issue and pointed to resources she could draw on and either liquidate or call in to meet the costs of airfares. The father also criticised the mother’s position regarding her studies and the implication being there was no reason she couldn’t be employed.
The father is assessed to pay child support, the mother has a departure order application in her response. The mother’s position was as the child was not in her care the father was not paying child support. There were also issued raised regarding (omitted) and other expenses for the child.
However on the basis of the orders made for the child to live with the mother, until further order and given the mother’s position, until further order on the issue of airfares alone I am not satisfied the father should be solely responsible for airfares. This is only until further order and the mother can pursue her departure order application on the next return date subject to the disposition of the venue change application which had been foreshadowed last week.
Venue change application
The mother in her response seeks an order that the venue be changed to Brisbane. Now that the Court orders provide for the child to live with her in the interim she presses that application.
The main reasons for the change of venue put forward on behalf of the mother are:
a)the mother and the child (pursuant to interim orders) live in Brisbane.
b)the mother and at least some of the witnesses to be called at final hearing are living there;
c)that whilst the family report writer, that was privately engaged by the parties, is in Melbourne they can attend by telephone link, video link or may be paid to attend Court in Brisbane to give evidence;
d)that if the shoe was on the other foot she would be required to travel to Melbourne and by extension it would cause some disruption for the child to require the mother to participate in Melbourne.
e)the father was in a better financial position to undertake the additional costs if the matter was to be transferred than were the matter to remain here.
The mother relied paragraphs 97 and 103 of her affidavit referred to earlier.
It was submitted that the father has the financial capacity to undertake the additional travel if the matter was transferred. It was submitted that the child would be attending school in Brisbane and disruption to him should be taken into account and that any additional costs incurred or disruption incurred in terms of witnesses such as those referred to earlier can be dealt with in the normal course of events.
It essentially it was put that Brisbane from the mother’s point of view was the more appropriate venue. Criticism was made of the father in commencing these proceedings in Melbourne. It was submitted that he shouldn’t have any unfair advantage by virtue of him winning the race to the court door as that would be tantamount to tacitly approving his actions for what was said to be over holding the child. In all the circumstances it was submitted that Brisbane was a more appropriate venue and the proceedings should be transferred to there.
The father in opposing the venue change application, through his Counsel appropriately acknowledged that he couldn’t say that the fact that until further order for the reasons given earlier today the child would be living with his mother in Brisbane was not a significant factor and properly so.
The father asked the Court to consider, in the context of the mother’s venue change application, concerns he had in regards to any question of delay occasioned by any transfer if that was to occur. It was said this should occur against the advanced stage of these proceedings.
The Court had provided the parties with an indication that, on the basis of inquires made by the Court as currently constituted and that’s all they are, if the matter was transferred the parties could expect a first return date by the end of April. The father queried through his Counsel what was the likelihood of the matter getting on for trial earlier than it would in Melbourne. It was submitted that the delay and convenience was a factor that should weigh in the Court’s consideration of this matter.
The power to change a venue is set out in Rule.8.01 of the Federal Magistrate Court Rules 2001, which is as follows:-
“(1)A party who files an application or response in a proceeding may apply to have the proceeding heard in another registry of the Court.
(2)In considering an application, the Court must have regard to:
(a)the convenience of the parties; and
(b)the limiting of expense and the costs of the proceeding; and
(c)whether the matter has been listed for final hearing; and
(d)any other relevant matter.”
I also note the provisions of Rule 11.18 of the Family Law Rules 2004.
I note the decision of Boland J in Sheen & Paulo [2007] FamCA 1175 (“Sheen”) refers to three aspects that must be considered:
Firstly, that the decision is discretionary and that the ambit is a wide one and is not to be measured against what another judicial officer may consider as being the correct decision.
In that case, Boland J states at [37] that:
“Whilst other judicial officers may have reached a different conclusion on the change of venue in this change of venue application, I am not satisfied that his Honour’s – exercise of discretion was outside the wide ambit of discretion available to him”.
Secondly, Rule 8.01 requires the exercise of discretion on a matter of practice and procedure.
The third aspect I must consider is whether the decision I will make will work an injustice against the applicant.
There is no authority that equal weight should be given to each factor in the relevant rule Boland J states in Sheen (supra) at [38] that:
“… It is clear having regard to the drafting of the rule, that the rule does not require any particular weight to be given to any one factor. In some cases issues relating to a balance of convenience may be decisive. In other cases the proximity of the final hearing date and the availability of a judicial officer to hear an application may be the most influential factor in determining a venue application.”
I am satisfied that there is no basis either in the Rules or authority which requires equal consideration to be given to each subparagraph of the Rules.
I now refer to Rule 8.01 of the Rules. In doing so I have born in mind that the father is the applicant and filed in Melbourne. The first consideration is the convenience of the parties.
The mother lives in Brisbane. As a result of the interim hearing the child is now living with the mother in Brisbane. The father is in Melbourne but can travel and has the capacity to do so.
The father acknowledged that the position of the child living with the mother until further order was a significant matter in the context of my view the convenience of the parties. On the issue of the family report writer, I appreciate the submissions that have been made in relation to that. However we live in the 21st century with the wonders of the internet, video conferencing, telecommuting and it does seem to me that these parties, to their great credit, have dipped into their assets albeit that the father hit his kick first and met the costs of the report. I am not satisfied that that couldn’t happen again and the parties certainly have, as has been acknowledge in the submissions, the resources to be able to vault any financial inconvenience occasioned by the transfer.
The parties at least at this stage had lawyers in Victoria. However its not unusual also for parties to engage in solicitors in other states and overall I am satisfied that convenience doesn’t tell against the mother’s application to transfer.
I find that for it is far more convenient for the matter to be heard in Brisbane than to remain in Melbourne. The second consideration is the limiting of expense and the costs of the proceedings. I note that the father is the applicant but the mother will incur additional costs and expense if the matter was to remain in Melbourne by occasion of the matters referred to in submissions. I don’t think that could be reasonably cavilled with. On the basis of the financial statements before the Court, which is the best evidence of the financial positions of the parties, I think that whilst it could be said that the mother could be coming into some money sooner rather than later, I think the net position is in favour of the father as was referred to in the mothers submissions is more correct. I accept the father has more ability to met to costs of travel if the matter is heard in Brisbane.
I find in respect to expense and costs that the venue should be changed to Brisbane.
The next consideration is whether the matter is listed for a final hearing. This matter is not listed for a final hearing and is only at an early stage. There is no indication on the inquiries made by the Court that the matter could be heard earlier in Melbourne than in Brisbane.
The last consideration is any other relevant factor. In considering this, I also consider the comparable rule as appears in the Family Law Rules 2004 Rule 11.18. The relevant parts are as follows:
“(1)In making a decision under rule 11.17 or in deciding whether to remove a case from another Court, the Court may consider:
(a)the public interest;
(b)whether the case if transferred or removed is likely to be dealt with (i) at less cost to the parties; (ii) at more convenience to the parties, or (iii) earlier;
(c)the availability of a judicial officer specialising in the type of case to which the applicant relates;
(d)the availability of particular procedures appropriate to the case;
(e)the financial value of the claim;
(f)the complexity of the facts, legal issues, remedies and procedures involved;
(g)the adequacy of the available facilities, having regard to any disability of a party or witness;
(h) the wishes of the parties.
Public interest does not apply in this case. I have addressed the issue of costs. I have addressed the issue of convenience. There will be availability of a Federal Magistrate in Brisbane. The same procedures appropriate to the case are available in Brisbane as in Melbourne.
There is no complexity, legal issues, remedies or procedures that cannot be addressed by a Federal Magistrate sitting in Brisbane.
Lastly the Family Law Rules refer to wishes of the parties. The mother wishes the matter to be heard in Brisbane and the father for the matter to remain in Melbourne.
In my view the considerations support the matter being heard in Brisbane.
Conclusion on change of venue
I find that based on the above considerations that Brisbane is the appropriate venue for this matter. On that basis I will make an order changing the venue to Brisbane.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Date: 29 March 2012
0
4
2