O and O
[2001] FMCAfam 195
•24 September 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
O & O [2001] FMCA fam 195
RESIDENCE – Relocation of wife – proceedings undefended.
| Applicant: | P H O |
| Respondent: | J A O |
| File No: | ZM 7349 of 2001 |
| Delivered on: | 24 September 2001 |
| Delivered at: | Melbourne |
| Hearing Date: | 24 September 2001 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr Crowther |
| Solicitors for the Applicant: | Mitchell McKenzie & Co Solicitors |
| Counsel for the Respondent: | No appearance |
| Solicitors for the Respondent: | No appearance |
ORDERS
THAT the children of the marriage A S O born 4 July 1993, S L O born 28 November 1996 and T L O born 28 November 1996 live with the Wife.
THAT the Wife have responsibility for the day-to-day decisions concerning the children’s care, welfare and development.
THAT the Husband such contact as the parties agree.
THAT the Wife and the said children be permitted to relocate for the school year in 2002, to Queensland.
THAT the Wife bring the children to E during the mid-year term holidays in 2002 for the purpose of having contact with the Husband, such contact to be agreed between the parties.
THAT upon learning of her address and telephone number in Queensland, the Wife forthwith provide to the Husband her address and telephone number and the Husband be permitted to telephone the children and send cards and letters and the Wife encourage the children to telephone the Husband and to correspond with him during the period that they are in Queensland.
THAT the Wife cause the Husband to be served with a sealed copy of these Orders, and a copy of the reasons for this decision as soon as is practicable.
THAT the Applications be otherwise dismissed and removed from the Pending Cases List.
THAT pursuant to section 65DA(2) of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE
ZM 7349 of 2001
P H O
Applicant
And
J A O
Respondent
REASONS FOR JUDGMENT (Ex Tempore)
Introduction
I have before me an application filed on 24 August 2001 by the wife seeking orders that the children of the marriage, A S O born 4 July 1993, S L O born 28 November 1996 and T L O born 28 November 1996, live with her and that she have responsibility for their day-to-day care, welfare and development. She also seeks that she be permitted to relocate temporarily to M in Queensland with the three children, who are aged respectively eight and six.
An affidavit of service was handed up for filing on behalf of the wife which indicated that the application, together with an information sheet as is required by the Federal Magistrate Court Rules, and an affidavit which was also filed on 24 August, was served on the respondent husband at his address in E by a process server on
3 September. That is now some three weeks ago. The respondent was called this morning and did not appear. Accordingly, I have proceeded with the matter on an undefended basis.
In addition to the material contained in her affidavit, the wife gave some brief evidence relating to events which had occurred since the documents were served on the respondent husband. In particular she gave evidence that she had had some conversations with him since
3 September, in which he informed that he did not want her to go but said that he would allow her to go if she “dropped the maintenance issue”. This refers to child support which is apparently being pursued by the Child Support Agency and in respect of which there are considerable arrears of child support. He also told her that he was annoyed that the matter was being heard in Melbourne, as he was busy.
The wife heard that the Husband had obtained advice from solicitors in E. She contacted those solicitors but was told that they were acting for him in other matters but not in relation to this application. I am satisfied that the respondent husband was properly served with the application, is aware that the matter is proceeding this morning and is aware that the matter might proceed in his absence if he did not attend or he did not instruct anyone to attend on his behalf.
As far as the application itself is concerned, the parties were married on 3 December 1988 and separated on 6 December 1998. Neither party has sought a divorce. The parties entered into a property settlement which was finalised in March 1999 but there are no orders currently in existence in relation to parenting orders. Both parties live in E. The wife is a secondary school teacher in E. Her affidavit indicates that there has been ongoing contact between the husband and the children, although it has from time to time been irregular. The wife deposes to the fact that she has tried to encourage contact between the father and children and has failed in her efforts to get him to see the children for longer periods or periods including holidays. Her affidavit indicates that there has been an ongoing dispute between the parties and presently between the husband and the Child Support Agency about his liability to pay child support.
The wife's affidavit deposes to the fact that the husband paid child support until November 2000. Since about that time she has not received child support in respect of the children and she is supporting them from her income and is their sole provider at the moment.
I am satisfied from the material before me that, applying the matters in the Family Law Act and particularly section 65E of the Family Law Act, which requires that I should regard the children's best interests as paramount, that it is in the children's interest to continue to reside with their mother and for an order to be made providing for her to have residence and the decision-making in relation to the children's day-to-day care, welfare and development.
The second part of her application seeks that she be permitted to relocate temporarily to M with the children. That relocation arises from an exchange posting which the wife wishes to undertake with the Education Department, which would see her spending a year on exchange posting in Queensland. She says in her affidavit that this opportunity will increase her experience and professional development and consequently assist her in obtaining more senior positions in the Victorian education system, both in the public school system and the private system. She points to the fact that it is likely that she will be the sole provider for the children for the foreseeable future and it is important that she has an opportunity to improve her employment prospects.
The conversations she has recently had with the husband indicate that he is not prepared to pay to either visit the children or have them return to him. However, the wife has indicated in her affidavit and in her evidence that she will return with the children during the school holidays in mid-2002, during which period the husband will have contact with the children, and that he can also avail himself of telephone contact and letters and cards as a means of keeping in touch with the children. Having regard to the matters in the wife's affidavit and her evidence, I am satisfied that it is an appropriate order and that the wife should be permitted to relocate for 12 months to Queensland.
In the matter of Ogden I will make the following orders:
(1)THAT the children of the marriage A S O born 4 July 1993, S L O born 28 November 1996 and T L O born 28 November 1996 live with the Wife.
(2)THAT the Wife have responsibility for the day-to-day decisions concerning the children’s care. welfare and development.
(3)THAT the Husband such contact as the parties agree.
(4)THAT the Wife and the said children be permitted to relocate for the school year in 2002, to Queensland.
(5)THAT the Wife bring the children to E during the mid-year term holidays in 2002 for the purpose of having contact with the Husband, such contact to be agreed between the parties.
(6)THAT upon learning of her address and telephone number in Queensland, the Wife forthwith provide to the Husband her address and telephone number and the Husband be permitted to telephone the children and send cards and letters and the Wife encourage the children to telephone the Husband and to correspond with him during the period that they are in Queensland.
(7)THAT the Wife cause the Husband to be served with a sealed copy of these Orders, and a copy of the reasons for this decision as soon as is practicable.
(8)THAT the Applications be otherwise dismissed and removed from the Pending Cases List.
(9)THAT pursuant to s 65DA(2) of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Bryant CFM
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