Pardey and Faunce
[2008] FMCAfam 67
•1 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PARDEY & FAUNCE | [2008] FMCAfam 67 |
| FAMILY LAW – Interim hearing – relocation – respondent fails or refuses to address all relevant allegations – children not ordered back – no dispute resolution certificate. |
| Family Law Act 1975, ss.60CC, 60I(9)(d) |
| Applicant: | MS PARDEY |
| Respondent: | MR FAUNCE |
| File Number: | CSC809 of 2007 |
| Judgment of: | Coates FM |
| Hearing date: | 28 November 2007 |
| Date of Last Submission: | 28 November 2007 |
| Delivered at: | Cairns |
| Delivered on: | 1 February 2008 |
REPRESENTATION
| Solicitors for the Applicant: | In Person |
| Solicitors for the Respondent: | McMillan Kelly & Thomas |
ORDERS
Until further order, the children S born in 1998 and L born in 2000 live with the mother.
The children spend time with the father by agreement and for half of each school holiday period – if the father is available - with the cost of travel to be shared equally by the parents.
Pursuant to section 62G of the Family Law Act1975 the parties and the Children S and L attend upon a Family Consultant as directed by the Manager Child Dispute Services on a date and time to be advised for the purposes of preparation of a family report.
The family report deal with the following matters:
(a)Any views expressed by the Children and any factors (such as the Children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b)The matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act1975; and
(c)Any other matters that the Family Consultant considers important to the welfare or best interests of the Children.
Upon receiving the report, the parties register with Relationships Australia pursuant to section 60I of the Family Law Act 1975.
The matter be mentioned on 14 April 2008, with the father given leave to appear by telephone.
IT IS NOTED that publication of this judgment under the pseudonym Pardey & Faunce is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
CSC 809 of 2007
| MS PARDEY |
Applicant
And
| MR FAUNCE |
Respondent
REASONS FOR JUDGMENT
When relocation of children is opposed, it is imperative that the relevant allegations made by one party are fully addressed by the other party.
In July 2007 the mother relocated her two children S born in 1998 and L born in 2000 from Brisbane to R in Far North Queensland.
On 14 September 2007 she filed an application asking for interim orders which would sanction that relocation.
On 3 October 2007 the father filed his response opposing the relocation.
Issues
Important issues in this matter were:
a)The parties commitment to acting in a timely fashion;
b)Whether there was consent to move; and
c)Conflicting claims as to the time the father spends with the children.
Acting in a timely fashion
It was submitted for the father that he attempted to file an application but he learnt that the mother had filed on 14 September 2007.
The father relied on two affidavits for the interim hearing, the first sworn on the 6 September but not filed until 3 October 2007 with his response and the second sworn on 8 October 2007 and filed on
12 October 2007.
The affidavit sworn on 6 September had been prepared for an application and the affidavit filed on 12 October was prepared to respond to the mother’s affidavit supporting her application.
In considering the father’s version of events as to the mother’s proposed movements, his explanation for not filing an urgent application in July when he said he found out the children were relocated, appears to be weak.
He did say he was advised to attempt dispute resolution before making an application (paragraphs 32 and 33 of the father’s affidavit sworn 6 September).
However, on his own evidence he was put on notice that the mother wanted to move in January 2007 and he then insisted that the mother undertake not to remove the children from the Brisbane area, so it may be open to conclude that she moved the children unilaterally in July and that orders were required as a matter of urgency without a dispute resolution certificate (see s.60I(9)(d) of the Family Law Act 1975).
Further, there was no explanation as to the delay in filing the application after he swore his affidavit on 6 September, eight days before the mother filed her application.
The question arises as to whether the father is acting with a sense of urgency in all of the circumstances when his children have been taken to Far North Queensland.
It is not an issue I can resolve from the interim hearing because the evidence was not tested under cross-examination.
Failure to address relevant allegations re consent
There is a dispute as to whether the father gave permission, directly or indirectly for the girls to be relocated.
In her affidavit at paragraphs 24, 25 and 26 the mother states that:
a)She told the father two weeks before the move that she was going ahead with her plans to move;
b)The father was not happy about the plan but refused to discuss arrangements for the children; and
c)He refused to discuss the move or that he spend more time with the children.
These are crucial paragraphs, because the mother makes a direct allegation that the father knew of the move.
While he addresses many of the allegations made by the mother by referring to specific paragraphs of her affidavit, of paragraphs 24, 25 and 26 he simply says he repeats and relies on matters deposed to in his affidavit sworn 6 September and filed 3 October 2007.
That affidavit was not prepared as a response document.
It does not directly address the allegation that the mother told him she was moving two weeks before she moved. That he found out from another person that she had moved, as he says, does not address the direct allegation that she told him she was moving.
It is a relevant consideration as to whether he confirms or denies this point.
I am not prepared to draw an inference as to his knowledge from his evidence when the mother says she informed him. Her claim seems to be stating he consented or he refused or failed to address the issues.
Time with the children
The mother claims that the father;
a)does not spend a great deal of time with the children although she wants him to spend that time with them; and
b)the time that he spends with the children is sporadic and at his choosing.
The father denies these allegations.
The mother was granted Legal Aid in February 2007 to attend a conciliation conference because she wanted the father to spend more time with the children.
No conference occurred.
The father stated he left some messages with Legal Aid (paragraph 6(i) of his affidavit filed 12 October 2007) but did not receive a return call and did not pursue the issue because things were “...‘settled’ and the mother and I were not disputing any of the current arrangements”.
Firstly, if the father means he left verbal messages with Legal Aid after he received correspondence from them, that does not give me great confidence that he made a real attempt to go to conciliation, although I leave that question open.
Secondly, the fact that the mother had approached Legal Aid for conciliation is evidence that she did not believe things were ‘settled’.
To put this in context, I keep in mind that the father:
a)Did not mention the Legal Aid correspondence in his affidavit filed 3 October 2007;
b)A month before he received the Legal Aid correspondence in February he held the children over, refusing to return them until the mother signed what he called an undertaking not to remove the children from the Brisbane region; and
c)At paragraph 24 of his affidavit filed 3 October 2007, he stated the mother insisted on him seeing the children only every second weekend if his roster permitted and the arrangement continued “for a couple of months until such time as things “settled down” and returned to the usual arrangement…”
Because the father has not addressed some key issues and because there seems to be conflicting evidence about whether matters were settled, I am not in a position or prepared to decide whether the children’s best interests are served by ordering their return to Brisbane.
The mother’s affidavit material is incomplete in many areas, but she has housed the children although she has moved from her original accommodation in the North and she is to file updating evidence.
The father did not make written application to take the children – that came as a verbal application during submissions - and so he is not concerned about their welfare.
The father’s parents live in the Cairns region and the mother said she keeps the children in touch with them.
I intend ordering a Family Report and when that is received, the parties are to register for dispute resolution through Relationships Australia.
I will also order, until further order, that the children live with the mother. It is important that they are not subject to being held over again now that the matter is before the Court.
Because there has been agreement in the past that the children spend time with the father, I will not make orders as to when they visit on an interim basis, except for half of school holiday periods. I will make specific orders as to times they spend with the father if required, after the family report is available.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Coates FM
Associate: Erin Firns
Date: 1 February 2008
0
0
1