Nixon and Nixon (No 2)
[2013] FamCA 839
•24 July 2013
FAMILY COURT OF AUSTRALIA
| NIXON & NIXON (NO. 2) | [2013] FamCA 839 |
| FAMILY LAW - CHILDREN - With whom a child lives – Relocation. FAMILY LAW - ORDERS – Enforcement. | ||
APPLICANT: | Ms Nixon | |
| RESPONDENT: | Mr Nixon |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Smith |
| FILE NUMBER: | MLC | 2061 | of | 2009 |
| DATE DELIVERED: | 24 July 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Senior Registrar FitzGibbon |
| HEARING DATE: | 17 July 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Ingleby (hearing) Mr Vadarlis (judgment) |
| SOLICITOR FOR THE APPLICANT: | Vadarlis & Associates |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Mr Nixon Address known to Court |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
IT IS ORDERED
Relocation
1)That paragraph 202-220 of the affidavit of the husband filed 31 May 2013 be struck out.
2)That until further order paragraphs 4, 5, 6, 7, 8, 9, and 10 of the final parenting orders made 13 January 2012 with respect to the children N Nixon (female) born … 2000, S Nixon (female) born … 2001, and I Nixon (female) born … 2005 (“the children”) be suspended.
3)That the children be permitted to be relocated until further order to Canberra, ACT, and to live with the wife thereafter pending final determination of the matter and subject to order 4.
4)That until further order the child N is to remain enrolled at TP School, Canberra, ACT and the children S and I at FP School, Canberra, ACT and such enrolments not altered without prior order of the Court.
5)That until further order the children, or any of them, may spend time and communicate with the husband as agreed between the parties NOTING THAT any such proposals ought be in writing with the precise terms or any conditions and arrangements for travel and accommodation specified including who pays for it, where changeover occurs, and be exchanged and given to the Independent Children’s Lawyer (“ICL”).
6)That the husband and wife take all steps to give authority to the ICL to communicate with any school, person, or agency about the children or the issue of school enrolment and fees.
7)That the wife give all necessary authorities to the children’s schools to enable the husband to receive directly from those schools at his expense, if any, copies of the children’s school term reports and all other materials parents receive.
8)That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
Enforcement
9)That the Application in a Case of the wife filed 28 June 2013 and Response to an Application in a Case of the husband filed 15 May 2013 be dismissed.
10)That the Application in a Case of the wife filed 14 May 2013 for enforcement of child support, property and spousal maintenance orders, and the response to it by the husband filed 15 July 2013 be adjourned before the Honourable Justice Cronin for mention on 30 July 2013 at 9.00am to consider listing it for priority final hearing and be subject to such further and/or other orders or directions as may be made by his Honour:
NOTING THAT
(a)there are no current applications or response for final parenting; and
(b)the matter will be listed with priority before a Judge of the Court for final determination having regard to its readiness.
11)That the parties and if represented, their legal practitioners, attend on 30 July 2013.
12)That by noon on 29 July 2013 each of the applicant wife and respondent husband prepare a precise minute of final orders sought with respect of enforcement and parenting and exchange all of them and send to the ICL and send a copy of the Associate to Justice Cronin at ....
13)That upon receipt of the minutes in order 12 the ICL advise each party of her views and any proposals by her and present to the Court a copy of those orders on the adjourned date.
14)That if discovery and disclosure has not been completed, each party by 4.00pm on 26 July 2013 provide to the other party and a copy to the ICL a list of all documents required for production or inspection and they by 12 noon on 29 July 2013 confirm in writing what each has in their possession, power or control and if not so, where those documents or things are located.
15)That to the extent that any party wishes to participate in any form of negotiation or mediation prior to the final hearing, arrangements be made prior to the first day of hearing.
16)That at the mention before Justice Cronin, each party represented by a lawyer have available to them and present to the Court, a statement setting out the costs incurred to that date, what amounts have been paid, from what source payments have been paid and what costs are expected to be incurred until the completion of the final hearing.
17)That the applicant and respondent ensure that any interested third party is informed of the mention so they may attend if they consider it necessary to do so and if they wish to apply to intervene or be heard by the Court.
18)That the costs of the wife of and incidental to these applications be reserved.
IT IS CERTIFIED
19)That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nixon & Nixon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2061 of 2009
| Ms Nixon |
Applicant
And
| Mr Nixon |
Respondent
REASONS FOR JUDGMENT
Issues and Application
Mrs Nixon (“the wife”) was offered and accepted a new position as a public servant at a government agency in Canberra, commencing 15 July 2013 and without sanction of the Court she has left Melbourne as a result with the three children of the marriage. She has managed to extricate herself from a residential lease in Melbourne, arranged new accommodation, selected secondary and primary schools for the children, N (13), S (12) and I (8), and otherwise made whatever arrangements necessary to give to affect to the move. She has communicated with Mr Nixon (“the husband”) about the relocation and made an open offer to him concerning changes to the final parenting orders.
Mr Nixon opposes any relocation of the children.
The wife’s Application in a Case filed 28 June 2013 seeks permission to relocate and was listed for the first occasion on 17 July 2013, the same day her enforcement application filed 14 May 2013 was adjourned by Justice Macmillan for determination by myself.
It was always unlikely that the husband would agree to the move. By her actions she has pre-empted the Court considering whether or not it is in the best interests of the children before any relocation.
As a general precept such actions, particularly in the context of four years of intense litigation, and final orders for the parties to share parental responsibility and children spend substantial and significant time with their father is most inappropriate and fraught with risk. The fact that such steps have been taken, does not prevent the Court from determining it is not in the best interests of the children at this point, or at all, and ordering that they be returned from Canberra to Melbourne until final hearing. The fact that it will cause collateral difficulties is not a basis to not make such orders.
Those bald facts in paragraph 1, isolated from all else point to that latter course being the appropriate and most suitable outcome pending a trial. But this is not such a simple situation and the facts must be placed into the context of the litigation history, conflicts since 2009 and failure to obey orders by Mr Nixon, which is said to have caused the move. On any view the decision to move cannot have been easy. Her actions are perhaps understandable, even if it is concluded that they were not in the best interest of the children, when what has preceded them are considered.
Mr Nixon wants the children to be returned to Melbourne immediately and offers that either they might live with him during the week and their mother commute on weekends to Melbourne pending final determination or she get a new position in Melbourne. Even a short term move pending a possible trial very soon will, he urged, adversely impact the girls by cutting them off from all with which they are familiar – family, friends, locales, and stability.
Since 2009 there have been various enforcement applications, both preceding and after the final consent property orders made 13 January 2012, against the father with respect to his obligations to pay interim spousal maintenance, lump sum property settlement, periodic child support, and education costs including private school fees, all due to the mother.
Justice Dessau prior to her retirement was the Judge who had this case in her Docket. On 5 June 2013 Justice Macmillan in the Judicial Duty List had the wife’s enforcement Application in a Case filed 14 May 2013 and the husband’s Response to an Application in a Case filed 31 May 2013 and determined that a further oral examination of the husband should be undertaken by myself by a discrete one day listing.
Those applications were listed before me on 17 July 2013. Thereafter the relocation application and response to it were filed and also listed that day. These are now my reasons following reservation of my decision on 17 July 2013.
Court Documents
The parties have each filed two affidavits by themselves, in the support of, or answer to, each application. There is no affidavit evidence from any other person. Tendered for the wife on 17 July 2013 as “W1” is a “Deed of Settlement and Release” relating to costs.
I have also had regard to, and read, as background or because of direct relevance to these applications, the published judgments of the Court, comprising three of my own, dated 25 May 2010 (parenting), 26 August 2010 (enforcement) and 3 December 2010 (costs), and those of Justice Dessau of 14 November 2011 (enforcement), 19 October 2012 (enforcement), and 29 January 2013 (enforcement) and of Justice Cronin of 7 November 2012 (stay), and the consequential orders from each of them.
Insofar as those reasons make comment upon the evidence, make findings of fact or assess the credit of the parties or others as witnesses, I adopt and rely upon them. None have been the subject of review or appeal. The husband sought to appeal the orders of Justice Dessau made 19 October 2012, subject of the stay judgment by Justice Cronin, which was refused, and his appeal was either abandoned or struck out for failure to comply with directions.
In these reasons, and for convenience, I shall deal first with the enforcement application and response and the oral examination principally because for reasons I will shortly elaborate, they were unable to be determined on 17 July 2013 and will require further consideration, likely at final hearing.
Thereafter I shall determine the relocation and parenting issues.
Inevitably there will be some overlap between the two by reference to facts, and history which have bearing on both applications. I will not set out in any significant way the complex factual and financial history of the marriage, and after separation. It is covered comprehensively in the reasons referred. I shall briefly refer to or surmise principal events since June 2012 and to date arising from the failure of the husband to pay the wife her entitlements and child support and school fees which has caused this ongoing litigation.
Enforcement of monetary orders
Orders Sought, Evidence and Submissions
The wife sought in paragraph 1(a) – (c) payment calculated up to 7 May 2013 of spousal maintenance arrears of $59,500, child support arrears of $42,579.60 and private school fees arrears of $34,721 by the husband and interest to be paid under s117B of the Family Law Act 1975 (Cth) (“the Act”), and Rule 17.03 of the Family Law Rules 2004.
He agrees he owes monies under each of (a), (b) and (c) but did not agree upon the sums claimed. He did not tell the Court, nor set out, anywhere in writing what he says are the correct figures. In fairness, as the child support matters are beyond my jurisdiction that paragraph was not pursued by the wife and he was not asked to do so.
She sought an order for the husband to forthwith deliver up to the Marshal a number of specified artworks (a) to (j) and which are subject and orders of Justice Dessau made on 19 October 2012 and 29 January 2013. She sought indemnity costs.
The husband sought 14 paragraphs of orders which traversed some matters not open to the Court as the effect of them if granted would effectively be akin to determining an application in s79A to set aside the consent final property orders, or re-open the case (paragraphs 2, 3, 4, 9, 10, 11, 12) when there is no such application to move the Court, or they were about parenting issues (paragraphs 8 and 13). However, paragraph 5 seems to seek orders discharging the interim spousal maintenance orders and for arrears to also be discharged in full, which it is not possible to consider its cessation as that order was for payments contingent on the husband paying the lump sum of $1.5 million to the wife in 45 days. The husband has not paid and so the order must continue. I refer also again to such a determination being unable to be done in isolation to the whole issue of outstanding monies. And by paragraph 6 that monies referred therein be treated as held on trust for the three children and his baby daughter born in March 2013 to his new partner, or injunctions be made restraining disposition of any now held or received to third parties, or firms until further order.
Whilst there was a short oral examination of the husband it became apparent that further examination of him this day would be unlikely to significantly advance the matter and especially in relation to the art works.
The L Group had receivers and managers appointed on 6 March 2013. Annexed at “H1” to the husband’s affidavit filed 31 May 2013 is a letter dated 13 November 2012 which sets out four defaults which were not rectified by the husband leading to the “collapse” of the group. That continues and before Justice Dessau there have been third parties permitted to intervene. The receivers and managers continue. None came to this hearing or to observe.
The husband blames this Court and the wife for his situation. He refers to 30 orders which have caused this which seems to ignore the substance of at least items 1-3 annexed in that letter over which neither the wife or the Court had control.
His statements and evidence is that he continues to be unemployed with “nil” income and is supported by his new wife and/or family with no prospect of paid work whilst there are receivers and managers and without a Financial Services Licence.
His current financial circumstances and the uncertainty caused by mortgagee sales and actions by the ANZ Bank is likely, he claimed, to deter or cause any prospective employers to be wary of employing him.
He claims to have no income or resources to meet any of his obligations under the orders and Child Support Agreement. At paragraphs 38 and 41 of his affidavit filed 15 July 2013 he states:
38I want to pay for my children, I simply need the opportunity to restart my securities practice – this requires a variation to the extant orders. The girl’s love their time with me.
…
41.I would love to have the children with me for weekends and holiday time, however I do not have any money or anywhere to accommodate the children. I can earn again when I can re-establish my [business].
The artworks, it is agreed, are held in a container controlled by a company known as CX Company who packed the husband’s personal contents together with those artworks. His evidence is that in his absence CX Company the removalists and storage business employed placed them at the rear of the container making it impossible to easily remove them from it. Those works are the subject of orders made by Justice Dessau on 19 October 2012 and 29 January 2013. She determined they be seized and that BB Auctioneers be used to sell them rather than OO Auctioneers as specialist auctioneers and because they offered better terms.
The husband’s evidence is that he, his new wife and his mother, have done all that they could in an endeavour to get CX Company to release the art. His mother paid $4,653 on 14 November 2012 as requested by the removalists “to have the [artworks] released” and claims they subsequently reneged or refused to release the artworks.
It is unclear but it seems the Sheriff who acts on a Warrant of Seizure as a result of orders made 19 October 2012 and 29 January 2013 has at some point communicated with CX Company and as a result it was suggested it has caused CX Company to be obdurate, difficult, or unwilling to release the artworks. If no money is owed to them that explanation seems without foundation.
The wife, or her advisors have not, in answer to my queries, communicated directly with CX Company to ascertain if what is deposed by the husband in paragraphs 146 – 151 of his affidavit are agreed by them as a fact or to ascertain what CX Company’s version is, and any other details, including what, if anything else, needs to be done to extract the artworks and give them to the Sheriff.
This information in the context elevated my reservations about the terms of the proposed order for the husband to forthwith deliver the artworks to the wife in that for the Court to contemplate making such an order it needs to be demonstrably practicable insofar as the husband has it within his power to deliver them up. The evidence fell short of that. To make such an order in these circumstances would therefore have likely not achieved its intention.
Therefore, that aspect could not be determined. Questions the husband was asked about his lifestyle and expenditure, and his ability to earn an income as an employee, and his explanations in answer was transcribed and is on file and made available to the parties. Transcript of the entirety of submissions from both parties is also on file and copies provided to the parties.
As a result no orders of substance have been made with respect to that application nor the response to it as the latter sought to effectively re-open issues previously decided or were not in the proper form to move the Court. The only course is to strike them out and the parties re-cast the orders sought and as I will order at the conclusion of these reasons. In fairness to the husband he had not seen the costs “Deed of Settlement and Release” until this day and expressed strong concerns about its terms and the ignoral of him when he was named party in the Supreme Court.
Relocation
Brief Background
Final consent orders made on 13 January 2012 provided for the parties to equally share parental responsibility for their daughters and for them to live with their mother, who has always been their primary caregiver.
They were to spend defined periodic time during school terms with the husband from after school on Thursday until Monday morning each alternate week, and ultimately half of all school term and summer holidays and on other special occasions.
The children were to all attend F School until at least Year 6 and thereafter at an agreed school which could include F School or Geelong Grammar.
The husband agreed to assume fall responsibility for all school fees and pay weekly child support. Time spent was conditional on certain injunctions about his consumption of alcohol, drugs and non-denigration being complied with.
Contemporaneously a second set of orders for final property and maintenance were made. Order 3 provided that the husband within 45 days of that date to pay to the wife, and to be held on trust, $1.5 million, whilst a series of others things ordered were attended such as requiring her resignation from a raft of corporate entities, for indemnities as to tax and the like given by the husband to her. Pending payment the husband was to continue to pay $1,700 per week spouse maintenance to the wife.
There was a Binding Child Support Agreement to be entered reflecting Notation B to the parenting orders. In it he was to pay $5,200 per calendar month child support, CPI adjusted, as well as private health cover and medical expenses, and all private school fees at F School.
Pending payment to the wife the husband was by orders 7(b) and (c) subject of a raft of injunctions preventing sale, encumbrance and the like of assets such as might diminish value or dispose of them.
My judgments of 26 August 2010 and that of Justice Dessau of 14 November 2011 concern arrears enforcement as at those dates. Payments had been intermittent or not made at all. There was a difficult and long history of failure to pay before the final consent orders, when things were brought up to date. It has never really improved as the $1.5 million was not paid and nothing of the spousal maintenance or child support and educational costs. The husband is in breach of the injunctions on their face as he effectively did what he liked. To that end I refer to the 19 October 2012 judgment.
Submissions and Evidence
The wife is an expert with particular expertise in Type 1 art and had been employed by BB Auctioneers since 2011. She earnt approximately $78,000 per annum. She has certainly been, since 13 January 2012 wholly reliant on that income. She used her expertise to acquire the missing art works.
It has been a difficult job to maintain and do. Changes in that business and its ownership have also impacted her such that she was most uncertain about job security.
Tendered to the Court by the wife, and marked as “W1” is a Deed of Settlement and Release between the wife and Kliger Wood to settle litigation arising from the unpaid $750,000 in legal fees and disbursements to them as her former solicitors. In it the recitals give a précis of what occurred. Ultimately that debt became the subject of litigation in the Supreme Court of Victoria. An application by that firm sought it be joined to the enforcement proceedings in this Court but it was declined by Justice Dessau.
The husband was not named in the Deed of Settlement nor provided with copies of it and nor is he a signatory to it. He claims he ought to have been so as he had been joined as a party in the Supreme Court. No other records were produced to the Court about it.
Of concern is that the Deed purports to permit monies held in trust by order of this Court to be paid out to nominated firms without orders of this Court permitting it. I was not addressed by the wife about it. The husband urged that any funds held in solicitors trust or anticipated to be received by them or the wife, should remain in trust, or be repaid if already paid out, and utilised by the wife to meet the support of the children including the payment of arrears of school fees.
The wife’s evidence is that generally she has been the subject of an unremitting and ongoing course designed to bring financial and personal ruin on her by malevolent acts from the husband, best described as a campaign by him to thwart her entitlements, ruin her career by spreading lies about her and including regularly denigrate her to the girls and wear her down.
In addition he has failed to adhere to the terms of the parenting orders in that the cycle of Thursday to Monday alternate weeks has not been adhered by him and the wife claims he has regularly treated it as his right to change times and days with no regard to its impact, at his whim, election or insistence. No adequate notice is given by him and he has made unreasonable and aggressive demands upon her to refashion timetables for the children to see him and to suit himself, or returned them early knowing she was not available. This had made balancing her work inordinately difficult. She sets out in her recent affidavit various examples of his behaviour.
On occasion her employment had required her to travel interstate for that work, and she would endeavour to arrange it so as not to disrupt the children. His failure to attend to his care of the girls, and cancel time or return the children without notice or on very short notice resulted in the need for her to rearrange her work schedule, get urgent help from her mother or others to assist. The impact of this made it clearly difficult with her employers and she never knew what to expect.
The husband makes bold assertions of professional impropriety by her with her employers which it is understood she denies but act as an example of his vendetta and his intent to spread rumour and innuendo about her.
Justice Dessau deals with his failure to pay in her judgments of 19 October 2012. As at 19 October 2012 he owed $1,753,191 (paragraph 193) and after 31 January 2012 until October had access to $3.4 million (paragraph 126) in addition to his drawings between December 2011 and up to October 2012 of about $660,000 (paragraph 123). Two other transactions (paragraph 127 – 140 inclusive) also troubled her Honour. It transpired he used $670,000 of the $1.5 million obtained from ANZ to enable purchase of the B property in his sole name.
It is best to refer to the judgment of 19 October 2012 as to endeavour to further excise paragraphs about the financial dealings and troubling acts by the husband is not practical because of their scale.
School fees at F School were not paid and continued to mount. F School indicated last term that the children could not be re-enrolled in Term 3, 2013 and so would need to attend another school. The wife sets out that at various times in the last 18 months she has been distraught and desperate because of the husband’s failures to pay. Her new job she says enabled a dignified exit from F School by the girls.
The three children are bright and have, in all the circumstances, continued to progress well and appropriately. There is no updated expert report on or assessment of their relationship with their father. But it is fair to describe it as one which has deteriorated and marred occasion by their likely perceptions of his behaviour to them reflected in order 11(a), (b) and (c) made 13 January 2012 and their witness to whatever has happened over 2012/13. Suggestions had been that when their paternal grandmother, other family members or adults were present the husband behaved in an appropriate and loving way with them, but in their absence, drank to excess, was abusive, denigrated their mother, and overall upset them.
Now this was before his new relationship. I know nothing of it or their interaction with that person.
They have not seen him, in the case of N since 12 May 2013 and the other children since 21 June 2013. They were due to spend half term holidays with him but did not do so, and the Court was informed had been taken to their maternal grandmother’s home in anticipation of the imminent move to Canberra. Term 3 commences around 22 July 2013.
The husband now lives, he deposes, at a temporary address for emergency accommodation in the city and/or at his new wife’s parents home at Suburb R. He had for a time taken occupation of a property in Town B which has been the subject of a recent mortgagee sale and formed significant examination of him before Justice Dessau.
The parties’ former matrimonial home in Suburb R, which had been valued at $7.5 million was ultimately sold but achieved nothing like that figure on sale, likely affected by the GFC; the holiday home, the sale of which the husband had control, and which did not sell to the purchaser for the expected and agreed $1.1 million as what had been held out to him as to its state, contents, fixtures and fittings, was in fact not accurate.
The business which is generally described as the “[L] Group” had until last year on any view provided a very substantial income and resource to the husband. He had been a clever and successful manager in the field of financial services by giving financial advice, and investment opportunities for private clients and institutional investors. He had most recently been entitled to receive as Chairman and approved by its board in excess of $600,000 per annum plus other benefits. Justice Dessau of course found he took, or had access to much more. Where it went or how it was spent is another issue which has never been fully explained.
After separation he lived at a standard well above what he claimed was his effectively parlous financial circumstances. Her Honour rejects that claim as did I in 2010 and to that end, I refer to his acquisitions of the luxury motor vehicle, the expensive dinner service and expensive clothing at a time when he was often in significant arrears of spousal maintenance and child support, and school fees.
In recent months the parties eldest daughter, N, and to her credit, assisted by her mother, has made application for scholarships at a number of schools, none of which have been successful, save that one School offered a partial scholarship for payment of about 20 per cent of boarding school fees. This was insufficient in these circumstances. It is hoped a full scholarship for her and S in 2014 might be offered.
The result, even in the absence of the wife’s move to Canberra, was the children had to be removed from F School and enrolled in state schools from Term 3 and likely in or around the area where they lived. Implicitly, acute embarrassment and shame might likely be felt or suffered by them, because of why becoming known.
The wife’s job as a public servant at a government agency in Canberra, is on a three year contract, but at a lesser salary of $71,632 per annum with annual increases, as against at BB Auctioneers her salary was $78,000 per annum approximately but for which had not increased since 2011 and her prospects were limited and job security not guaranteed.
The new position requires her to live in Canberra. She claims Canberra has lower costs of living. She has leased an appropriate property near the schools. The children are able to be enrolled in two good government schools, being TP School for N which has an excellent reputation, and offers International Baccalaureate, and FP School for the other girls.
The wife, the Court was informed at the hearings, rented her home in Melbourne but through the auspices of the managing estate agent a new tenant had been found, new lease signed and thus she is released from her obligations under the old lease.
The benefits to the children by moving now is that it is “a dignified exit” from Melbourne, has regard to the fact that they could not continue to attend their school in Melbourne and so change of school was inevitable, she could ill afford the cost of living in Melbourne, stress for her and the girls about schooling ends, and stability and certainty resume. The prospect of the previous orders for money to be paid to her seem unlikely to be satisfied soon.
She offers openly arrangements for the children to return in school holidays and at least on one occasion at her expense and with appropriate notice up to four other occasions each term for weekends with their father and on other special occasions.
The husband has consistently claimed that he has not got the financial wherewithal to meet the orders, whether they were made by consent or by the Court and including and extending to spousal maintenance, child support, and property settlement. Justice Dessau, and myself in 2010 both concluded otherwise.
His perceptions clearly, from the tenor of submissions, is that it is a deliberate course by the wife designed to ruin him and which she has embarked upon and aided by the Court who by its orders has unreasonably fettered his ability to get capital to operate in his field of expertise.
This is seeking to re-write history. Whether it is a smoke-screen seeking to present himself to his partner and their family as some form of exoneration for him, and to cast aside all onus or blame from him, or for some other reason time will tell. Justice Dessau and Justice Cronin comment at length about it.
He is highly critical of Justice Dessau and in fact from paragraphs 202 – 220 of his affidavit filed 31 May 2013 and headed “Her Honour Linda Dessau,” he sets out offensive and scandalous criticism of her Honour. He was informed at the hearing he could voluntarily withdraw these paragraphs and if he failed to do so then the Court would inevitably strike it out. In the event that was not returned to on 17 July 2013. He had asked to consider his option and when he needed to decide.
With hindsight I determine now that this is not a case of giving procedural fairness to him. They are scandalous and offensive and designed to impugn the integrity of her Honour and bring this Court into disrepute. They will be struck out.
The husband, unsurprisingly, expressed his concern in his submission that the wife had ignored the parenting orders and particularly shared parental responsibility, by moving to Canberra, and shown her complete disregard for Court orders which ought not be permitted. She ought be made to obey them and ordered to return the girls to Melbourne.
It was an ironic submission in the context of the litany of orders which he has failed to abide by insofar as at least money matters are concerned.
He denies that he has sought and regularly so to vary the parenting orders and for time spent but rather asserts that the wife has effectively set him up or has engaged in behaviours which would give the impression to others that this is a course he has embarked upon. She has sought to impose other conditions not subject of terms in orders on him. For instance, the recent occasions he cited of his advice that he would not be attending or the children being returned early to her care, as he could not afford to feed them and her then receiving advices from a friend that he was seen thereafter lunching at the Royal South Yarra Tennis Club and perhaps photographed.
The wife despite her claimed impecuniosity on Facebook sets out her recent trip to the snowfields. He suggests she has monies she has not disclosed and wants thorough accounting of her expenditure and how any monies have been distributed.
The husband raised on more than one occasion his concern that he has been threatened, stalked, and the subject of very troubling things or events which emanate, he suspects, from the wife, or are encouraged by her. The wife offers to the husband’s evidence of being pursued by debt collectors or others and he owes money and that it greatly troubles her.
He says an attempted burglary of his now parents in law home in Suburb R caused 12 police to attend. Continuing by police are telecommunication intercept warrants and a range of other things he was unclear about but the thrust of it was the police took it all most seriously. The Court informed him they were matters for the State police and the State Courts when he asked for injunctive orders against the wife.
There are scant particulars or detail of the matters which he generally asserted, save above that he claimed a friend of the wife might have some links and there is a link with crime or underworld figures through that person or the wife.
To that end, I do not accept, nor make any findings that such assertions are accurate, or if these events have occurred that they are as a result of things said, done or caused to be so by the wife in the absence of fuller and better evidence.
The husband expressed concern in his affidavit that s121 of the Family Law Act was breached as the judgment of Justice Cronin appeared on the internet without it being anonymised. I understand that may have in fact occurred, entirely inadvertently, and not a deliberate or considered step taken by the Court, and was promptly remedied. That was most regrettable for the children if anyone else noticed.
There was apparently an article published in the Herald Sun in May 2013, not naming him but which appears replete with detailed references to the facts and expenditure.
The husband deposed that he is unable to care for the children as he would like because he has no place to live. He has no income with which to support them. But still he says the wife can return, get a job as needed in Melbourne or commute between Canberra and Melbourne on Fridays and Sundays whilst he cares for the girls. The wife should return, be responsible for the F School fees from trust monies held or which have been paid, or are likely to be paid to her in the near future and for child support, all of which he was obligated to pay.
There is much that could be traversed and reiterated as to the credit of the husband as dealt with comprehensively by Justice Dessau. It would do nothing for the purpose of this application to reiterate it. At this hearing he was polite, attentive and responsive within its short ambit but his response and affdavits are a grab bag of overlapping complaints and ultimately seems to seek to rewrite what actually occurred, or the finding adverse to him, in order to absolve himself of blame or responsibility.
The husband’s concern is valid that the move even in the short term to somewhere so foreign and alien to the children, in taking them from the city and the suburbs with which they are familiar and have lived all their lives; Melbourne suburbs; where they have no family; no network; no friends; no general support is wrong. Circumstances are that the wife could get work in Melbourne and instead is now without anyone to fall back on to assist her with the care of the children or if they are unwell should not be sanctioned.
His new wife, who is parenting their four month old daughter, is not on oath and so it is not known what level of support she can or is willing to give. Ultimately there was no real force to his position of assuming care nor was there an elaboration by him or an explanation as to how he could do so, and sanction the Court it was practicable if his claimed impecuniosity was to be accepted.
The Law
There is no specific legislative provision dedicated to this most difficult issue of whether or not to permit a child or children to be relocated on an interim or final basis. Such determination forms part of the Courts consideration in applying the relevant sections of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and in determining, as in all cases, what is in the best interests of the child. Assessing the proposed relocation is part of that exercise. Best interest overlays all matters pertaining to children (s 65E).
Part VII commences with its Object and Principle in s 60B which is twin pillared. The first pillar comprises the right of a child to have a meaningful relationship in their best interests with each parent and who should work cooperatively in order to ensure that the child achieves their fullest potential. The second pillar provides that in considering how or if it is to be in the best interests of the child to have a meaningful relationship, they must be protected from the receipt of, or exposure to, any form of abuse, violence, and neglect. These things range across physical and sexual abuse, emotional and psychological abuse, to them or exposure to it.
To assist the Court in determination of what is in their best interest s 60CC sets 15 considerations to which the Court must have regard. The first two are primary considerations reflecting the twin pillars of s60B. The Court is to give greater height to protecting the child than the benefit of a meaningful relationship. The balance traverses a range of considerations, not necessarily pertinent in each and every case. Those relevant are in the context of the evidence such as what happened in the past, what is happening now, and future making current proposals and then making an informed assessment on the evidence available.
The Court has broad powers to make orders which prevent the child or children being relocated or to require their return if that has occurred (s 67ZC, s 68B and s 114(3)). An interim hearing requires at least a limited assessment.
The approach to these cases has been considered by Judges at first instance, by the Full Court sitting on appeal and by the High Court of Australia.
In B and B; Family Law Reform Act 1995 (1997) FLC 92-755 the Full Court confirmed that relocation is not a separate category of cases within the Family Law Act and that it is part of the assessment of best interests of the children but within the particular context which might be apply and to be determined always in accordance with the principles contained in what is now Part VII of the Act.
In A & A; Relocation Approach (2000) FLC 93-035 this Court initially formulated a guideline judgment. Subsequently in B and B; Family Law Reform Act 1995 and AMS v AIF; AIF v AMS (1999) FLC 92-252 the High Court of Australia confirmed that the Court must determine the case as part of the overall consideration of parenting orders and in effect what is in the best interests of the child.
It is not a requirement that the party wishing to relocate needs to set out compelling reasons for their intention to do so nor the respondent against relocation.
Those proposals are evaluated as part of the best interests assessment taking into account all of the relevant considerations and legitimate interests, not only of the relocation but all that follows with it and in accord the legislative pathway as prescribed. There is not an onus on either party to establish the for or against argument but rather that the welfare and best interests are the paramount obligation, but the Court should at the same time in determining what is best for the children, be able to consider legitimate interests and desires of parents as part of that process, but not as an obligation within that process. Where there may be conflict between the considerations applicable to each of the parents, the priority at all times is the child’s welfare and their rights.
Where a parent seeks to change arrangements affecting settled orders or arrangements for the residence and parenting and spending time or communications by that child or children with another parent, then they must demonstrate that the proposed new arrangement, even if it involves a significant move interstate or overseas, is in the best interests of the child. Likewise the Court when considering significant changes proposed by relocation is not bound to or constrained to only determine the matter within the constraints of the proposals put by either party and if the Court considers that what is proposed is not in the child’s best interest, it may offer an alternate suggestion but provided it is communicated to the parties, and opportunity given to them to address them. Likewise the Court has acknowledged that the right of a parent to move for reasons which may be considered appropriate and valid may in many or most cases result in factors and considerations which point against it being clearly in the best interests of the children.
Following the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) the Full Court examined those changes and set out the path to be followed on both final and interim hearings in Goode & Goode [2006] FamCA 1346. It is identical but process is different.
In Morgan & Miles (2007) FLC 93-343 her Honour Justice Boland considered in some detail the issues of determination of interim relocation applications after the 2006 amendments as previously referred was considered by the Full Court in Goode & Goode (supra). Her Honour considered whether different considerations ought apply between an interim and final hearing and if different considerations ought apply if a relocation does not substantially affect the time that a child might spend with the other parent.
It is well settled that at interim hearing it is not practicable to undertake an exhaustive analysis of the evidence and so decisions are made in the clear knowledge that they are temporary. The difficulty in relocation cases is that the effect of delay after an interim determination to get to a final hearing may have the effect of creating a “fait accompli” rendering it difficult to reverse what is then in place.
In the context of this case, the matters the subject of consideration and discourse by her Honour bare closer scrutiny and reference.
At paragraph 82 in considering the effect of the legislation in determination of an interim application she confirmed that there is no legislative mandate to consider different criteria in an interim application but acknowledged that it is of an abridged nature and an abridged enquiry.
She discussed the decision of Cowling & Cowling (1998) FLC 92-801: (1998) 22 Fam LR 776 which had, prior to the commencement of the Shared Parental Responsibility amendments, promoted stability as the appropriate arrangement and to be kept in place pending the trial unless there was a demonstrable risk to a child which would warrant some change.
Following the Shared Parental Responsibility amendments, whilst it is not discounted, it is now but one consideration for the Court to have as part of its exercise in moving through the path prescribed in the Act.
She confirmed of course that full investigation can only occur at a final hearing or potentially by application of less adversarial processes which can be contemplated being used in Division 12A of Part VII. Consideration should be given to s 60C, s 61D, and s 65DAA.
The circumstances of the child at the time of the application or immediately before their unauthorised removal, particularly absent issues her Honour opined such as abuse or violence, may well be likely to be extremely relevant.
The Court quoted from the report by the Family Law Council of Australia and released and published in 2006 and in which therein the point was strongly made that it is highly desirable that, except in cases of emergency, the arrangements that will be in the child’s best interests should not be determined in an abridged interim hearing and these relocation cases are effectively the type which the child’s present stability may be extremely relevant on an interim basis.
At paragraph 79 of her Honour’s reasons she set out things that must do, be satisfied about or guided by. In summary they are:
·That the parties have genuinely considered, unless there is some exclusionary circumstance, to resolve disputes.
·That the orders that the Court makes should have regard to the best interests as paramount but not the sole consideration.
·The Court should be guided in its determination by the Objects and Principles underpinning the legislation and in doing so requires considering those twin pillars as earlier referred, as well as the background of the Objects and including having regard to both parents having meaningful involvement and that to an extent consistent with the best interests of the child.
·Where there are presumptions which are regarded as rebuttable, that is the existence of risk and violence directed to, or exposure of the child to it, then the consideration that flows from the parties having equal shared parental responsibility may be rebutted.
·Where such order for shared parental responsibility exists the Court is enjoined to consider the prospect of the child or children being cared for, or continuing to be so, on equal basis, in whatever configuration by both parents if it is in their best interests and practicable, and if not then to a lesser extent but for in a substantial and significant way in periods of time again if in their best interests and practicable.
·That where a move is a matter of distance, interstate or overseas, it may be that simpliciter orders for sharing of parental responsibility jointly are not workable and that particular aspects might require individual or unique orders to be made.
·As each case presents different facts or issues for determination there is no precise indicia which can be categorically laid down nor mandatory requirements to give more or less weight to any aspect of it.
The s 60CC considerations are particularly important as the Court is required to consider on a case by case basis the effect of the move on the child in determining the overall parenting application.
Subsequent to her Honour’s decision there have been a number of other judgments which did not significantly vary but rather elaborate upon the facts in the context of unique facts of the case. I refer to the High Court in MRR v GR (2010) 263 ALR 368 and by the Judges of this Court but I refer nonetheless to Hardie & Capris [2010] FamCA 1046; Cowley & Mendoza [2010] FamCA 597.
The principals enunciated in the case law are that generally permission to relocate on an interim basis or for the Court to sanction what has taken place already, but without its authority first obtained should be exercised with great caution, having regard to the unique facts which apply not only at the time, but of necessity the history that may have led to these events and in the context of, when assessing the best interest of the children, if they are not permitted to relocate, or if they are compelled to return, what are the likely or possible effects to them.
A Judge at trial is not bound by any interim order which has been made. An interim determination is generally conducted upon the written evidence and by submission with no oral evidence or cross-examination occurring. It is a truncated hearing designed to deal with whatever immediate or pressing problems are present.
Often the evidence is incomplete or there are significant factual disputes and in such circumstances the Court can only rely upon those matters that are admitted and agreed and must otherwise weigh, as best it can, in the balance those things where the parties are clearly opposed, there are differences between them or others on their behalf.
On occasion the Court may be assisted however by single expert reports from a Family Consultant or clinical psychologist, input from an Independent Children’s Lawyer, or published judgments in the case or other evidence available which may be quite compelling.
Assessment of evidence against the legislative pathway
The parties agreed to final orders for them to equally share parental responsibility. The evidence of both parties is that it has been quite unsuccessful and has never been used as intended insofar as ready and open communication between them as parents designed to advance the best interests of the children. It is their clear intent, as reflected in the Binding Child Support Agreement and the notations to the final orders, as to what was to happen with respect to the children’s education. At all times it was to be at private schools, and continue to be so with all those expenses met by the husband. Further, it was always intended that he would pay $400 per week for each child or $5200 per calendar month, adjusted as appropriate for their general support. Whilst those sums are high, they are a reflection of the background, lifestyle and agreed intent which the parties had during the course of the marriage and on settlement and for heir children to enjoy as well.
The wife has asked that the Court make an order for her to have sole parental responsibility. That can be considered at any final hearing.
It was accepted that such an order, on my indication, is not open to the Court to be made in this hearing. However, I made an interim order until delivery of these reasons permitting the children’s enrolment at Canberra schools.
The considerations to which the Court must have regard under s 60CC bear some brief specific examination and reference to matters already referred or additional facts.
Those relevant are s 60CC are s 60CC(2)(a) and (b), and s 60CC(3)(b), (c), (ca), (d), (e), (f), (g), (i), (j), and (m).
Section 60CC(2) – Primary Considerations
Historically the children had expressed a view that they enjoyed spending time with their father, provided he was not affected by alcohol or other things or did not get angry with them or denigrate their mother to them. When experts first made such assessments they were some years younger. There is no current or up to date assessment of their position or views or wishes and it is a presumption made that things have deteriorated. To that end the wife deposes to the stress and anxieties of the children in recent times because of what she says are the poor behaviours and failure to abide by terms of orders with respect of the children by the husband. The husband asserts that the children are affected by the attitudes and wishes of their mother and this is that which they reflect and not any thing said or done by him to them.
The wife supports and offers precise arrangements to continue time spent. As this is interim and the case is receiving priority I conclude any detriment to the girls can be addressed soon. There has clearly been, historically, matters of concern regarding any risks to the children being exposed to the conflict between their parents, or the actions of the husband.
Section 60CC(3)(b) – Relationship of child with parents and others
The wife has been the children’s primary caregiver and is identified as having a loving and proper relationship with them. The husband, whilst previously having an appropriate secondary attachment to the children by virtue of his past engagements and events which have occurred and now what he says is his lack of funds and accommodation, has resulted in instability and change to any routine or regular pattern which they might have expected under the terms of the final consent orders. One would hope that the bond and attachments which have been made have not been entirely severed and that they might in the future be able to be renewed and strengthened to return to an appropriate loving and secure relationship.
Section 60CC(3)(c) – Extent to which parents have taken or failed to take opportunity to participate in decisions, spend time and communicate with the child
I have already referred briefly to the respective positions of the parties and their evidence regarding exercise of shared parental responsibility in making decisions, but insofar as spending time the wife’s evidence in her most recent affidavit sets out the problems and particularly its recently experienced problems extending from the husband regarding spending time and communicating with the children.
Section 60CC(ca) – Fulfilling or failing to fulfil obligation to maintain the child
The failure to fulfil obligations by the husband to maintain the children is a most significant factor in this case and which underlies and is the major cause of the relocation.
The variations, or changes to commencement or conclusion times spent with him as ordered whilst troubling if correct are not of themselves sufficient to warrant or justify the Court sanctioning an interim relocation.
But the four years of litigation, with the constant need to enforce orders of the Court against the husband regarding both spousal maintenance, school fees, and child support generally, and the finds of the Court stand as testament to the husband’s failures in this regard. It is fair to surmise that had he continued to meet, at the least, his obligations under the Binding Child Support Agreement and for the periodic payments for the children, then the position the wife found herself in would be quite different and the need to move unlikely. The tenor of the affidavit evidence of the husband and his submissions point to a failure to understand or discern that the course that he has engaged in and pursued consistently insofar in not paying what he has been ordered to do, whether by consent or as order of the Court, is a matter of grave concern in the context of considering him as a primary care-giver and regardless what impact it has had on the girls.
Section 60CC(d) – Effect of Separation
The effect of changes on the child’s circumstance are such that there is no ready or appropriate way in which the orders for alternate Thursday after school until Monday prior to school regime can continue. However the wife has made an open offer of what are reasonably extensive opportunities for the children to spend weekend time, on four or five occasions each term, plus holidays with their father. That done in the context of the relationship as it has been, for whatever reason, foundering but which on its face could enable it to be maintained in an appropriate way. It is likely, however, that there would need to be some very particular things attended first so as to ensure the children travelled and felt secure and confident in seeing their father and that nothing was said or done to breach injunctions.
There are extended paternal family members, and is now Ms PS and importantly the infant who is their half sister and with whom it is desirable, and in their interests, to have a relationship. That of course in the context of third parties and family members not engaging in denigration of the wife in their presence, hearing, or behaving in ways likely to exacerbate the concerns they hold. And the same needs to be carefully made by the wife.
Section 60CC(e) – Practical Difficulties
There are some practical difficulties in that the cost of the children travelling will now be significant because it must be done by air and the husband claims to have no funds in order to do it and the wife has limited funds insofar as always meeting the costs of any such travel should it continue as a final order.
Section 60CC(f) – Capacity to Parent
I have no expert evidence about the capacity of the parents to provide for the needs of the children but as far as it is appropriate, I comment upon the impacts of the financial matters upon the children and otherwise, on the evidence of the wife, that they are three intelligent nice girls in all the circumstances, and doing well in school. The children N and S may receive boarding scholarships to a Grammar School in 2014 which was once an agreed course by their parents. The wife has encouraged them in these pursuits. She is the primary caregiver and it must be that those positive results are to a large extent the result of her fostering and encouraging them in their education, and I would hope the husband to at least some extent even if not so by paying for it.
Section 60CC(g) – Maturity, Lifestyle and Background
The parties lived a comfortable upper middle class life putting aside adverse findings about expenditure by the husband. The children were used to, and only used to, the cocoon of prestige suburban shops with occasional forays to the coast, such as Lorne for holidays or to their holiday home. They have lived a privileged life and it was expected that it would continue.
The move to Canberra and enrolment in state schools in a new city which is vastly different to Melbourne will no doubt impact them and how that may do so in the longer term is a matter for final determination.
Section 60CC(i) – Attitude to the child and parenting as demonstrated
The wife would say the husband has demonstrated very poor skills in that regard whilst he asserts that she has endeavoured to dictate and change or prescribe conditions not contemplated in the orders.
On balance, I prefer the evidence and version of events of the wife as to the husband’s non attendance, late attendance, early return of the children, and all other associated matters and all that has been observed.
As far as I am able to weigh and consider it, I prefer the evidence of the wife to that of the husband but it is not a finding. In due course there may be third parties whose evidence, on affidavit, and cross-examined and will aid the Court in determining whether that is correct or not.
Section 60CC(j) and (k) – Family Violence
There are no current Family Violence orders but there were Intervention Order proceedings previously. I refer to the conflict between the parties and what now is the situation of neither wishing to disclose addresses to each other and the husband’s assertions that the wife is a cause of his problems which necessitated police engagement. It is also possible on his version of events and referred to by the wife that if these threats of harm and the stalking which he says he has experienced continue to occur, that they are in someway related to his debts or other things which are unknown presenting and not the responsibility of the wife. Such threats if they were made or exist now may clearly have potential adverse impact upon the children should they occur whilst with their father or mother and at worst harm occurs. If they are fabricated it will do no credit to whoever made the claim.
Section 60CC(m) – Any other matter
The matter which is most relevant is that there is no prospect in the immediate future of the wife receiving the monies, to which she was entitled as final property orders, spousal maintenance and child support arrears, and the like. That the situation has arisen, I do reject the claim by the husband it was caused and created by the Family Court of Australia and its orders, or created by the wife in pursuit of more than her just and equitable entitlements, or for more than she was reasonably entitled as ordered, including by consent on occasion, from the husband to she and the children. The husband is the master of his own destiny.
Conclusion and Orders
In considering the facts, background and circumstances which have pertained since 2009 but most particularly continued to pertain since the final parenting orders were made on 13 January 2012, they do all act in varying ways as a mitigation of the steps taken by the wife to move.
The husband seeks to attribute blame and the cause of his putative financial demise upon the wife and this Court. I have already rejected that claim. I also reject his submission that any funds received by the wife should be applied towards payment of arrears of school fees. This wholly ignores the fact that payments were his obligation and that the $1.5 million final property payment order was not done so. The findings about it by Justice Dessau, stand unchallenged or no viable elaboration of it made.
It is wholly unreasonable and in fact ludicrous that he should consider that the wife, earning $78,000 per annum in Melbourne, had any chance of paying school fees or maintaining the children and that monies to which she was entitled or were for the benefit of the children but never paid should now be used to absolve him of his debts.
I am satisfied on her evidence, albeit untested but having regard to unchallenged events of the last 18 months and the unchallenged judgments the wife had to make decisions about how to house, feed, clothe, educate and care for the children, without any assistance financially from the husband for the foreseeable future or possibly ever again.
In ordinary circumstances, self help and making arrangements to move having applied for a job and accepting it and then undertaking the move as done by the wife would most likely have resulted in an order requiring the children to be returned.
But not in this case. I consider the position in which the wife found herself compelling and of sufficient gravity insofar as the limited and generally unpalatable choices open to her, that she had little choice and thus the decision she made is in the best interests of the children. The alternate position is that she wants to alienate the husband and this move aids her. An unlikely conclusion I suspect.
More likely is that this offer was grabbed like a life raft.
Despite what the husband claims, the children have continued to do well academically and in the face of all that they have undergone in the midst of parental conflict.
TP School where the child N is enrolled is a school which is part of the international Baccalaureate as was F School, and is effectively a selective secondary school. Implicit is that the younger children may be successful in transitioning to it as well.
The children have been afforded a dignified exit from F School, and from Melbourne. The wife has a position at a prestigious national institution and which whilst paying her less than she received from BB Auctioneers gives her a fresh start, annual salary increases and with good prospects of promotion and terms of work.
She asks and urged that the Court not compel disclosure of her address at this point. She is concerned that the husband will seek to embark upon a means of harassment. I do not know if that is a fact or would be the case just as I do not when husband expressed the same about the wife. The sealed envelopes can remain with the Court and the Independent Children’s Lawyer know of the contents of each.
Arising from the oral examination and his submissions the husband offered nothing in terms of rectification, or compliance by payment of any of the monies owing by him to F School as was required or anything else, which could offer a solution such that the children’s return to Melbourne might reasonably be contemplated by the Court, as not only in their best interests but financially viable. His history of failure to abide by orders stands as testament to no faith in him doing so now.
There would be little or no point in requiring the children to return to Melbourne in circumstances in which they no longer have a home to go to, albeit another might be rented, the school at which they had been enrolled no longer welcoming them, no prospect of financial support from their father and no prospect of it in the near future. So whilst they are removed from him and extended families and a familiar environment, at least on an interim basis and pending close scrutiny by the Court at final hearing of the wife’s position it also affords the opportunity to the husband to reconsider his position and perhaps seek to remedy his defaults and make offers to the wife, or to the Court in a substantive sense, to do things and quickly so that debts are paid and the practicalities of the children’s return to Melbourne insofar as the costs of their housing, are and education are secured.
General
The parties did not wish to disclose addresses. I have addressed that already.
I have reappointed an Independent Children’s Lawyer (“ICL”) for final hearing and Ms Smith of Victoria Legal Aid has been asked to undertake that task and re-appointed. It is desirable that as soon as practicable she speak to the girls to ascertain what might be done insofar as them spending time and communication with their father.
Mr VP was the expert psychologist involved previously. I am not certain what course or position the Court may take insofar as re-engagement of an expert in circumstances in which certainly the cost in unable to be met.
This is a very sad situation in which three very nice girls have had their lives and what had been agreed and expected radically altered impacting them not just practically as it has now done, but no doubt emotionally. It is trite to state that N as a 13 year old is likely to know and discern much and her sisters to have asked questions, not unreasonably from their mother, or each other about why such a move or particular difficulties and events have arisen.
They had lived from their births affluent, privileged and comfortable lives, as the husband and wife intended. That has ended. It might resume if the husband found the wherewithal to meet his continuing obligations. But unless and until that is done, I conclude it is not in the best interests of the children to remain in Melbourne at this point, although much will depend on schooling prospects and scholarships in 2014. My orders will permit enrolment continuing until further order.
Insofar as orders for them to see and spend time or communicate with their father, there is little point in the Court making any definitive or defined terms now as the husband did not embrace what was offered in open form by the wife and I accept, as far as I am able, her evidence that he has not availed himself of the full extent of times open to him under the final orders. Further I surmise that it may well now be that the children refuse or are very reluctant to see or spend time or communicate with their father. The ICL may assist with all of this.
The orders of the Court will be:
Relocation
1) That paragraph 202-220 of the affidavit of the husband filed 31 May 2013 be struck out.
2) That until further order paragraphs 4, 5, 6, 7, 8, 9, and 10 of the final parenting orders made 13 January 2012 with respect to the children N Nixon (female) born … 2000, S Nixon (female) born … 2001, and I Nixon (female) born … 2005 (“the children”) be suspended.
3) That the children be permitted to be relocated until further order to Canberra, ACT, and to live with the wife thereafter pending final determination of the matter and subject to order 4.
4) That until further order the child N is to remain enrolled at TP School, Canberra, ACT and the children S and I at FP School, Canberra, ACT and such enrolments not altered without prior order of the Court.
5) That until further order the children, or any of them, may spend time and communicate with the husband as agreed between the parties NOTING THAT any such proposals ought be in writing with the precise terms or any conditions and arrangements for travel and accommodation specified including who pays for it, where changeover occurs, and be exchanged and given to the Independent Children’s Lawyer (“ICL”).
6) That the husband and wife take all steps to give authority to the ICL to communicate with any school, person, or agency about the children or the issue of school enrolment and fees.
7) That the wife give all necessary authorities to the children’s schools to enable the husband to receive directly from those schools at his expense, if any, copies of the children’s school term reports and all other materials parents receive.
8) That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
Enforcement
9) That the Application in a Case of the wife filed 28 June 2013 and Response to an Application in a Case of the husband filed 15 May 2013 be dismissed.
10) That the Application in a Case of the wife filed 14 May 2013 for enforcement of child support, property and spousal maintenance orders, and the response to it by the husband filed 15 July 2013 be adjourned before the Honourable Justice Cronin for mention on 30 July 2013 at 9.00am to consider listing it for priority final hearing and be subject to such further and/or other orders or directions as may be made by his Honour;
NOTING THAT
(a)there are no current applications or response for final parenting; and
(b)the matter will be listed with priority before a Judge of the Court for final determination having regard to its readiness.
11) That the parties and if represented, their legal practitioners, attend on 30 July 2013.
12) That by noon on 29 July 2013 each of the applicant wife and respondent husband prepare a precise minute of final orders sought with respect of enforcement and parenting and exchange all of them and send to the ICL and send a copy of the Associate to Justice Cronin at ….
13) That upon receipt of the minutes in order 12 the ICL advise each party of her views and any proposals by her and present to the Court a copy of those orders on the adjourned date.
14) That if discovery and disclosure has not been completed, each party by 4.00pm on 26 July 2013 provide to the other party and a copy to the ICL a list of all documents required for production or inspection and they by 12 noon on 29 July 2013 confirm in writing what each has in their possession, power or control and if not so, where those documents or things are located.
15) That to the extent that any party wishes to participate in any form of negotiation or mediation prior to the final hearing, arrangements be made prior to the first day of hearing.
16) That at the mention before Justice Cronin, each party represented by a lawyer have available to them and present to the Court, a statement setting out the costs incurred to that date, what amounts have been paid, from what source payments have been paid and what costs are expected to be incurred until the completion of the final hearing.
17) That the applicant and respondent ensure that any interested third party is informed of the mention so they may attend if they consider it necessary to do so and if they wish to apply to intervene or be heard by the Court.
18) That the costs of the wife of and incidental to these applications be reserved.
IT IS CERTIFIED
19) That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel.
I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of the Senior Registrar FitzGibbon delivered on 24 July 2013.
Associate:
Date: 24 July 2013
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