Pampi and Bolsa

[2012] FamCA 418

FAMILY COURT OF AUSTRALIA

PAMPI & BOLSA [2012] FamCA 418

FAMILY LAW – CHILDREN – Interim – Family report to be prepared

APPLICANT: Ms Pampi 

RESPONDENT: Mr Bolsa

FILE NUMBER: PAC 6767 of 2007

DATE DELIVERED: 28 May 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 28 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Clifford

SOLICITOR FOR THE APPLICANT: Dimocks Family Lawyers

SOLICITOR FOR THE RESPONDENT: Sarah Bevan Family Lawyers

Orders

1. The mother’s interim application filed on 22 March 2012 is dismissed.

2. A family report be prepared pursuant to section 62G Family Law Act. The family report writer is to focus upon the following:

   2.1.Issues relating to the relationship between M and both of the parents and issues around the mother’s proposal to relocate from Hong Kong to Brazil;

   2.2.Issues around the father’s alternate proposal for M to relocate and live with him in Sydney;

   2.3.How much M’s relationship with her father may have already been compromised by the existing arrangements and whether or not the proposals by the mother if she relocated to Brazil are sufficient to maintain the relationship between M and her father;

   2.4.How the respective proposals of the parties are or are not in M’s best interests;

   2.5.Any past relationship barriers in the relationship between the parents;

   2.6.Mental health issues of either parent.

3. The child M born … August 2005 shall be separately represented and Legal Aid NSW is requested to arrange such representation.

4. The Registry Manager or her nominee notify the Senior Solicitor, Family Law Litigation, Legal Aid Commission of New South Wales of these Orders within 7 days from today.

5. On or before 14 June 2012, the solicitors for the parties provide to the Senior Solicitor, Family Law Litigation, Legal Aid NSW copies of all relevant orders, reports, applications and affidavits filed on behalf of the each of the parties.

6. The final hearing of this matter is to be expedited and the matter should be placed by the listing coordinator into a judicial docket as soon as possible.

7. The directions hearing listed for 9 July 2012 be vacated.

8. Orders be made in accordance with the document entitled “Respondent/Father’s Proposed Order” marked as Exhibit 1 as annexed hereto.

Exhibit 1

1. That within 14 days the applicant Mother shall do all acts and things reasonably necessary to file an application to a court in Hong Kong exercising family law jurisdiction seeking to register the orders made by the Federal Magistrates Court on 11/12/2009, 18/2/2010 and 2/5/2012.

2. That the applicant mother shall provide a copy of such application to the respondent husband within 14 days thereafter.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 6767 of 2007

Ms Pampi

Applicant

And

Mr Bolsa

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The mother has filed an interim application on 22 March 2012, the terms of which are identical in the terms of the final orders that she seeks the Court to make.  The effect of those orders would allow her to relocate with M (“the child”) from Hong Kong to Brazil on an interim basis, pending final determination of this matter. 

2. The child is now six years old and was very young when the parties separated.  The father has initially agreed for the mother to take up employment in Hong Kong and to take the child with her when the child was quite young.  He subsequently, in defended proceedings in 2010, consented to final orders whereby the mother was allowed to stay in Hong Kong with the child on a permanent basis.

3. The mother has since formed a relationship in Hong Kong and has married her new husband.  He has been offered employment in Brazil and intends to take up that employment.  The mother has recently been made redundant in Hong Kong from her job and received a redundancy payout of about $30,000.

4. It is the mother’s alternate position that if she’s not allowed to relocate, on the interim basis, immediately to Brazil, then she would stay in Hong Kong with the child.  The child would stay at her existing school.  She may or may not work, depending on whether or not she can obtain employment.

5. The father’s application on a final basis is for the child to come and live with him in Sydney.  He complains that the mother has not been generous in terms of facilitating the child’s time with him and he says it has in fact been almost a year since he has seen the child.  But he has seen the child on a regular basis during the child’s formative years.  There’s no indication from the mother that they don’t have a good relationship.

6. The parties have seen a family consultant and I have her memo.  There are recommendations in that memo for a full family report, the appointment of an independent children’s lawyer and the expedition of the final hearing.  All of those recommendations are sensible. 

7. Allowing the mother to immediately relocate to Brazil on an interim basis obviously has certain advantages for the mother’s happiness.  The downside of an immediate interim relocation is it does tend to create a situation that would be difficult to reverse on a final hearing.  On the other hand, it might, in fact, end up creating a situation where the child has to change schools twice within a reasonably short period of time.  If this matter was adjourned for a further interim hearing once the family report was available and once the independent children’s lawyer was fully across the matter, we could almost have a final hearing ready to go on an expedited basis.

8. I note the mother is prepared to offer a $60,000 bond to come back from Brazil for the hearing.  The father’s concerns with Brazil are set out in his affidavit.  He makes reference to a DFAT travel warning.  The father was not permitted to rely upon inadmissible material which formed the basis of concerns he had about Brazil’s compliance with the Hague Convention.  He may wish, at the final hearing, to call admissible evidence about those matters.

9. Making an order that would have the effect of leaving the child where she is creates a situation where there is some stability.  On the mother’s case, she is the primary carer of the child and the child’s primary attachment figure, and she will be with the child.

10. I do not think it is in the child’s best interests to allow her to move to Brazil in the interim.

I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 28 May 2012.

Associate:   

Date:  6.6.2012