Norris and Matthews

[2016] FamCA 1157

FAMILY COURT OF AUSTRALIA

NORRIS & MATTHEWS [2016] FamCA 1157

FAMILY LAW – INTERLOCUTORY – Relocation – Where the mother seeks to relocate with the child to New Zealand – Where the interim application is the mother’s final relief brought forward – Where the issues raised by the mother do not warrant an interim hearing – Where a determination regarding relocation will be made at final hearing – Where permitting relocation on an interim basis may result in the child having to relocate back to Australia on a final basis – Decided there is no need for an interim hearing – Decided the status quo should not be upset – Ordered the mother’s Application in a Case and the father’s Response are dismissed

APPLICANT: Ms Norris

RESPONDENT: Mr Matthews

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: (P) NCC 2226 of 2015

DATE DELIVERED: 9 December 2016

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

EX TEMPORE JUDGMENT OF: Cleary J

HEARING DATE: 9 December 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Carty

SOLICITOR FOR THE RESPONDENT: Oliver Campbell Heslop Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. Leave is granted to the Applicant mother to rely upon Mr West as her McKenzie Friend.

2. The Application in a Case filed by the mother on 7 November 2016 is dismissed.

3. The Response to an Application in a Case filed by the father on 7 December 2016 is dismissed.

4. The Amended Application in a Case in relation to child support filed by the mother on 19 October 2016 is adjourned to the Duty List at 10.00 am on Tuesday 7 February 2017.

5. The Independent Children’s Lawyer is excused from the Application in a Case on the adjourned date.

THE COURT NOTES THAT

A.The Amended Application in a Case filed by the mother on 19 October 2016 was not served on the Registrar in respect of child support.  The matter is adjourned to give the mother the opportunity to serve the Registrar and to consider her application if she wishes.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Matthews & Norris has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC 2226 of 2015

Ms Norris

Applicant

And

Mr Matthews

Respondent

And

Independent Children’s Lawyer

Legal Aid NSW

Ex Tempore

REASONS FOR JUDGMENT

Introduction

1. This is an Application in a Case by Ms Norris.  It was filed on 7 November 2016, supported by an affidavit by Ms Norris filed at the same time. 

2. A Response to an Application in a Case was filed by the father on 7 December 2016, supported by an affidavit by him filed on the same day. 

3. In dealing with the matter, I have considered where the final proceedings have reached. 

Short History of Relevant Events

1. On 29 January 2016, interim parenting orders were made by consent and those Orders continue to be operative.

2. On 24 March 2016, a Family Consultant prepared a Children and Parents’ Issues Assessment (“CAPIA”).  

3. On 27 July 2016, an interim Order was made by consent varying the parenting Orders in a specific way involving third parties. 

4. There has been an Order made on 24 November 2016 for a Family Report to be prepared in relation to final parenting orders.  The interviews for that report are in February of 2017 and the matter will be back before the trial Judge in March 2017. 

5. It is in that context of drawing towards the conclusion of final proceedings in both parenting and also in property in respect of which there have been many applications and orders made to date, that I consider this Application in a Case.

Positions of the Parties

1. The ultimate application of the mother is to be able to relocate the residence of the parties’ child to live in New Zealand.  The father is opposed to that course.

2. The child, B, is six years old. 

3. The Application in a Case is for relocation to New Zealand on an interim basis.  That does not mean for a short period of time with imminent return, but rather is the final application brought forward into an interim form. 

4. For the purpose of considering whether that application should be heard, I have read the affidavit of each of the parties and have come to the conclusion that the matters raised do not justify an interim hearing of the very issue that is to be determined with the assistance of a Family Report and a testing of all of the evidence in 2017.

5. The matters that are raised in particular are these: that the applicant mother feels constrained in Australia, refers to herself as feeling like a prisoner.  The applicant mother also says that she believes that the subject child has regressed and has arranged a child psychologist for her.

6. The father does not see the same signs the mother alludes to. 

7. There is an Apprehended Violence Order in place for 12 months which will expire in January 2017. 

8. There is a report from Dr D that says that the mother has had sessions with him or others in his rooms over a period of time since a referral in April 2016 and that it may be of assistance for the mother to be assessed for post-traumatic stress disorder.

9. It seems that there has been some concern in the workplace, but I am uncertain about that. 

10. There is a letter which is alluded to by the mother as being oppressive from the father’s solicitors, Annexure K, which appears to be the kind raising concern about compliance with orders that is regularly seen in a highly-conflicted situation drawing close to trial. 

11. There is nothing in the affidavit of the mother which would justify a trial on an interim basis. It would be better heard on a final basis.  That is not to say that the mother does not feel confined, constrained by remaining in Australia.

12. The mother no doubt is in the same stressful situation as the father is, created by their new partners having been formerly partners with each other.  There is an assertion by the father that the mother’s partner is moving to New Zealand imminently.  I am unable to know whether that is the case, but, if it is, no doubt that would also be stressful for the mother. 

13. There is a Christmas holiday period looming and orders determine what should happen for the child with each of her parents.  That is a matter of significance for a six year old. 

14. There are interviews looming with the Family Consultant in February.  It is important that as much as possible the status quo is maintained so that a proper assessment can be made.

CONCLUSION

1. There is also the potential for significant disruption for this child in the event that she was permitted to relocate on an interim basis only to be brought back if the Court concluded otherwise on a final basis. 

2. Judges are enjoined by the authorities not to create disruption to the status quo if that can be avoided.  On that basis, I will dismiss the Application in a Case and likewise the Response of the father, whose affidavit I read only in the context of his opposition to the application of the mother.

3. At the conclusion of these reasons, I was alerted by the mother to an additional affidavit that had been filed on 7 December 2016.  I have read that affidavit.

4. It is consistent with the earlier affidavit in that the mother is keen to pursue her application to relocate immediately.  She alleges breaches of the Apprehended Violence Order.  There is no evidence before me of police action in that respect. 

5. The mother also refers to her belief that there may have been contraventions of current parenting orders.  The record suggests that Contravention-Applications have been made over the last 12 months or so.  It is a highly contentious dispute.

6. There is also an allegation by the mother that there was a recent incident involving a motor vehicle which the mother attributes to the father and a reference to a report to police.  The mother’s best evidence is that the police have advised her that there was insufficient evidence for anyone to be charged.  There is nothing in that affidavit which causes me to review the reasons I have already given for the dismissal of the Application in a Case.

7. It has to be said, the mother being self-representing, that her submission was that she ought to be able to relocate to New Zealand to relieve her own stress and feelings of being constrained in Australia.  It should be clear that the orders do not restrain the mother from going to New Zealand.  Rather, she is in a position of not being able to establish a residence for the child in New Zealand until such time as a Court makes that order.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Cleary delivered on 9 December 2016.

Associate: 

Date:  2 February 2017