N and N
[2003] FMCAfam 33
•14 January 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| N & N | [2003] FMCAfam 33 |
| FAMILY LAW – CHILDREN – Residence – relocation – interim proceedings – mother relocates the residence of the children interstate and then seeks to transfer proceedings. |
| Applicant: | C A N |
| Respondent: | C A N |
| File No: | PAM 4463 of 2002 |
| Delivered on: | 14 January 2003 |
| Delivered at: | Parramatta |
| Hearing Date: | 14 January 2003 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Schroder |
| Solicitor for the Applicant: | F D Hammond & Associates |
| Counsel for the Respondent: | Mr Gutierrez |
| Solicitor for the Respondent: | Matthews Dooley & Gibson |
ORDERS
The parties are to comply with Rule 24:04 by serving on each other copies of the following documents within one month:
(a)their 3 most recent taxation returns;
(b)their 3 most recent taxation assessments;
(c)their most recent member's account statements and financial statement from any superannuation fund of which that party is a member;
(d)their last 4 business activity statements lodged, if any; and
(e)the 3 most recent financial statements and the last 4 business activity statements of any partnership, trust or company (other than a public company) in which that party has an interest.
The application is referred to conciliation conference pursuant to section 26 of the Federal Magistrates Act 1999 and the parties are granted leave to approach the Registrar for the purpose of appointing a conciliation conference.
Pursuant to section 62G of the Family Law Act the parties are to attend upon a Court Counsellor at a time, date and place nominated by the Director of Court Counselling for the purpose of a Family Report.
The matter is stood out of the list with liberty to restore on 48 hours notice.
IT IS ORDERED UNTIL FURTHER ORDER:
The Respondent mother is restrained from relocating the residence of the children R N born 24 July 1987, A N born 8 December 1988, K N born 18 October 1993 and M N born 13 June 1995 outside the Sydney Metropolitan Area.
The Respondent mother is to return all the said children to the Sydney Metropolitan area by 6pm on Sunday 19 January 2003.
The Respondent mother is to provide to the Applicant father’s solicitors the current address or addresses of the said children within 24 hours from the date of these orders.
The Applicant father is to have contact with the said children as follows:
(a)from 9am Monday 20 January 2003 to 5pm Tuesday 28 January 2003;
(b)On the second and third weekend of each month from 12:30pm on Saturday to 6pm Sunday;
(c)For the first half of each NSW school holiday period.
The Respondent mother is to pay the Applicant father’s costs which
I assess at $2500 and I allow two months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 4463 of 2002
| C A N |
Applicant
And
| C A N |
Respondent
REASONS FOR JUDGMENT
The application before the Court is an application by the father of four children, R, A, C and M, for certain injunctive orders against the mother and for certain contact orders. R was born on 24 July 1987; A was born on 8 December 1988; C was born on 18 October 1993; and M was born on 13 June 1995. The children reside with the mother. Indeed the children have resided with the mother since the parties separated.
The father has formed a new relationship.
The transactions between the parties were commenced by the first of a chain of letters between the applicant's solicitors and initially the respondent but then the respondent's solicitors. They commenced on
21 September 2002 when the applicant's solicitor, Mr Hammond, wrote to the respondent in an open letter relating to the sale of the former matrimonial home and making certain proposals about contact ending with the words:
"We strongly advise that you receive legal advice regarding this matter."
Correspondence between the parties' solicitors continued over the ensuing months and agreement between the parties over contact was not reached on 24 October 2002. The applicant's solicitors wrote to the respondent's solicitors an urgent letter on the subject of contact ending with the paragraph:
"We put you on notice that unless your client agrees with this proposal then on Monday, 28 October 2002, we will issue an urgent interim application for contact and seek costs of the same against your client."
Over the next few weeks, the correspondence continued. The mother, and it has been part of her case, has said that contact between the father and the children has been sporadic and on Saturday, 26 October, she offered to drive the child, A, to his father's place for some contact time but the child had refused. In fact, the mother says that A and R do not wish to participate in contact with their father.
What did happen, however, and what was certainly in contemplation whilst all this correspondence was going on, was that the mother proposed to relocate to Melbourne with the children.
On or about 21 November 2002 according to her affidavit she attended a job interview in Melbourne and she says that on her return to Sydney her solicitors informed her that the applicant had commenced action against her and in fact annexed to her affidavit is a copy of the letter from the applicant's solicitors indicating an application was filed seeking interim and final orders.
The mother was informed she had obtained employment in Melbourne. She proceeded to make inquiries concerning school for the children and deposed in her affidavit of 13 December:
"I will now be residing in Melbourne with my children."
She returned to Melbourne on 2 December or thereabouts to prepare accommodation for herself and she seeks orders the property be sold and that proceedings be transferred to the Dandenong Registry of this Court. The cost of travel for herself and the children as she says would far exceed the cost of the husband to attend the Dandenong Registry.
Of course the mother had said in her later affidavit that she had not got the husband to commit when exactly he wanted contact over that period of time. Indeed, she refers to a letter dated 18 December about contact and goes on to say in par 7 of her affidavit:
"Now that the applicant had finally confirmed his availability
I instruct my solicitor to organise contact during the children's school holiday period."
The proceedings commenced and came before the Court on 5 December.
The respondent's solicitors noting that the matter was returnable on
6 January before this Court wrote to the applicant's solicitor saying:
"We note the matter has been listed for 6 January 2003. However this is an unsuitable date for our client as she anticipates being interstate during this period. We therefore advise we will be seeking the first return date to some date in February."
No mention there, in fact that, the mother’s move interstate was intended to be permanent. Indeed, it appears the mother then set about removing herself from the former matrimonial home and exhibit 1 is a set of photographs taken by the husband late in December showing the house was empty although a large number of items remained strewn around the place. Presumably they have since been removed or if they have not been removed they will need to be removed in order to get the place into saleable condition.
The mother in paragraph 11 of her affidavit of 9 January 2003 presents the Court with a fait accompli.
"I am now settled in Melbourne and the children have been enrolled in school."
Paragraph 12 she goes on to say:
"I have now entered into a lease for a property in Melbourne for a period of six months."
A copy of the lease is annexed although the address of the premises
I note have been blacked out. One can only inquire why it is that the mother seeks not to provide to the father the address at which she proposes to reside with the children.
She in fact in paragraph 19 says:
"The children have settled in well and have made several friends. I am now deeply concerned that the applicant will not return the children after their visits because the applicant has now changed his application and seeks residency of the two youngest children."
There is no other reason given as to why the father would seek to return the children after contact.
Paragraph 24 contains the statement:
"My move to Melbourne will not affect the applicant father's access or contact with his children."
I am of the view that that is just disingenuous. It is just not sustainable. I accept the fact there has been no regular contact arrangement but there is a vast difference between two different suburbs of Sydney and residing in another State at an undisclosed address. I accept the fact that Melbourne is the second largest city in Australia and is in an adjoining State. I am conscious of the fact the mother has intentions to move not to Port Headland or to the Cape York Peninsula but to Melbourne.
Nevertheless, I find it astonishing that a party, knowing that there are ongoing negotiations about contact envisaging that that contact will take place with the parties residing in the Sydney area should proceed to make arrangements to completely depart from Sydney, take the children from Sydney, relocate and set up in another State without informing the other party until the party had been presented with in effect a fait accompli.
I note Mr Schroder of counsel points out the parties cannot take the law into their own hands and this I will say is one of the more blatant examples of a party seeking to take the law into their own hands and then safely ensconced in Melbourne saying:
"Please move these proceedings to Dandenong because it is going to cost too much for me to come to Parramatta."
That is not what I propose should happen. It is not what the law says would happen and I propose to make certain orders preventing that.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A.Coutman
Date: 13 February 2003
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