PARTOS & MERRITT

[2015] FamCA 365

FAMILY COURT OF AUSTRALIA

PARTOS & MERRITT [2015] FamCA 365

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to institute proceedings – where the parties must first obtain leave of the Court before they can institute proceedings – where the mother seeks to amend her application for final orders  – where the mother wishes to relocate interstate with the child – leave granted.
FAMILY LAW – CHILDREN – Interim – Where the father seeks an immediate variation of existing parenting orders – application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Partos

RESPONDENT: Ms Merritt

INDEPENDENT CHILDREN’S LAWYER: Gary Couper

FILE NUMBER: BRC 1985 of 2007

DATE DELIVERED: 19 May 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 11 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page of Queen's Counsel

THE RESPONDENT: In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Couper
Couper Geysen Family & Animal Law

Orders

1. That the mother is given leave to further amend her initiating application to include further parenting orders that she seeks in respect of her proposed relocation to northern New South Wales.

2. That the father’s Application in a Case filed 12 March 2015 is dismissed.

3. That until further order, the father shall return the child to the mother in Brisbane at 5:00 pm on Sundays on the alternate weekends that the child is spending time with him pursuant to existing interim parenting orders in the event that he cannot ensure that the child is going to be delivered to his school by the scheduled start of school the following morning.

4. That the proceedings are listed for a directions hearing before his Honour Justice Forrest at 9.30 am on Thursday, 28 May 2015. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Partos & Merritt 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 BRISBANE

FILE NUMBER: BRC 1985 of 2007

Mr Partos

Applicant

And

Ms Merritt

Respondent

REASONS FOR JUDGMENT

1. This long running parenting orders litigation between the parents of the child C who is now 9 years old, is listed for a trial before me on the 10^th and 11^th of August this year. There were previous trials before Bell J in 2008 and 2010. In fact, the child’s parents have been in dispute about his parenting in this Court for virtually all of his life so far.

2. In April 2010, Bell J ordered that the child live with the mother and that she have sole parental responsibility for him. The child was to spend each alternate weekend from Friday afternoon to Sunday afternoon with the father. The orders provided for the father to collect the child from H Town at the start of that time and for the mother to pick him up from I Town at the end of that time. The father was living in Region J at that time.

3. In March 2011, Bell J ordered that until further order the parents must not institute proceedings in this Court without first obtaining leave of the Court. Bell J also recused himself from any further hearing of the matter.

4. On 16 September 2013, I gave the mother leave to file a fresh application seeking a variation of the then existing parenting orders and she did that.

5. Interim orders were made by the Principal Registrar on 31 October 2013 that varied some of Bell J’s final orders. The matter was readied for trial and listed, as said, in August this year.

6. For immediate determination though, are competing applications of the parties, more recently filed, that were heard by me in the judicial duty list on Monday 11 May, 2015.

The Applications

1. The mother seeks leave to be able to include in the orders she is seeking from the Court at the pending trial an order permitting her to relocate the child’ residence from where they currently live on the south side of Brisbane to a little town just south of K Town in northern New South Wales.

2. I did not understand the father to really oppose leave being granted but senior counsel who appeared for him made some submissions as to the law that applies to the determination of the mother’s application that must be considered.

3. For his part, the father seeks an immediate interim variation to the orders made by the Principal Registrar on 31 October 2013 that require him to pick up the child from school in Brisbane on Friday and drop him back to school on Monday morning and also require him to ensure that the child attends his scheduled extra-curricular events on weekends when he is with him or, if the father cannot, to drop him back to the mother so that she can.

The Submissions for the father as to whether leave should be granted

1. Senior counsel for the father submitted that as the mother is applying for leave to add the relocation issue to her proceedings because of Bell J’s order requiring her to first do so before instituting proceedings in the Court that ss 102QE, 102QF and 102QG found in Part XIB of the Family Law Act 1975 (Cth) apply. That Part is headed “Vexatious Proceedings”.

2. Part XIB was inserted in the Act by the Access to Justice (Federal Jurisdiction) Amendment Act 2012 and became effective on 11 June 2013. It includes a definition of a “vexatious proceedings order”. That term means an order made under subsection 102QB(2) of the Act. Sections 102QE, 102QF and 102QG apply to a person who “is subject to a vexatious proceedings order prohibiting the person from instituting proceedings”.

3. Bell J’s order was made on 18 March 2011, over two years before Part XIB was inserted into the Act. It is not a “vexatious proceedings order” as defined in the Part and, as such, in my view, the provisions of Part XIB of the Act do not apply to it. The mother is, therefore, not required to comply with the requirements of s 102QE when making her application for leave.

Should leave be granted?

1. The application the mother was granted leave to commence in 2013 dealt with issues surrounding the place of collection and return of the child by the father, particularly having regard to the father having moved back from Region J to the south side of Brisbane and the child having commenced school and extracurricular activities.

2. Now the mother deposes to being in a relationship with a man who lives in northern New South Wales and that she has a desire and financial need to relocate to live with him in that area. The mother seeks leave to be able to apply for an order that lets her relocate the child to that area as the proposed move would impact upon the operation of the existing orders. In addition, the mother seeks leave to amend her existing application to include an order that the child not spend time with the father on weekends during the school term, as the current orders provide for.

3. Apart from the submission about the application of Part XIB, no opposition to the grant of leave to the mother was offered by the father. Accordingly, the mother will be given leave to further amend her existing application for parenting orders to reflect the final orders she now asks the Court to make.

The Father’s application

1. The father seeks an order that paragraph 10 of Bell J’s final orders of 21 April 2010 be reinstated immediately. That order relevantly provided:

   Except as otherwise agreed or as otherwise ordered herein, changeover shall occur as follows:-

   (a)      …

   (b)During 2011, and thereafter the changeover point at the commencement of time the child is to spend with the father shall be at [L School] or such school that the child may be attending from time to time except when such changeover is to occur on a weekend or public holiday or a day when the child’s school is not open, in which case the father shall collect the child from Relationships Australia [H Town], and the mother shall collect the child at the conclusion of such time from Harmony House Contact Centre [I Town].

2. As paragraph 3 of those orders provided for the child to spend alternate weekends with the father from 4 pm Friday until 4 pm Sundays during school term, after the boy started school at L School, the orders provided for the father to pick him up at the commencement of his time with him from school on the Friday, thus requiring him to drive from Region J to L School. They required the mother to drive up to I Town on the Sunday afternoon to collect him from the father at the end of his time with the father.

3. Sometime in 2013, the father moved from Region J to Brisbane to live with and care for his father who was terminally ill. His mother, who was separated from his father, also lived nearby and suffered from dementia.

4. Leave was granted to the mother to seek to vary Bell J’s orders so that handovers could all take place in Brisbane without any ordered requirement for her to travel to Region J to collect the child from the father on the Sunday afternoon.

5. On 31 October 2013, Principal Registrar Filippello’s interim variation of Bell J’s orders actually discharged paragraph 3 of the order and provided for the child to spend each alternate weekend with his father from after school Friday until before school on Monday morning. Those orders also varied the changeover arrangements such that changeovers were simply to take place at the child’s school or, if taking place when school was not open, then at the children’s contact centre operated by Relationships Australia at H Town, or, if that place was not open, at a named restaurant car park in M Town.

6. The Principal Registrar’s orders also provided expressly that, until further order, the father:

   …shall have the child attend sporting and extra-curricular activities while the father is spending time with the child.  In the event the father is unable to facilitate his participation, the father return the child to the mother for her to facilitate the child’s attending.

7. The father now, by his application filed within a couple of weeks of the mother making it clear that she wants to relocate to northern New South Wales, seeks the discharge of those mentioned orders of the Principal Registrar. His application seeks to have things revert to the way they were before he moved back to Brisbane in 2013. His application includes a proposed reversion back to only having the child with him from Friday after school until Sunday afternoon. The father’s application also seeks to discharge the order that requires him to take the child to his extracurricular activities on the weekends that the child spends time with him.

8. In the father’s affidavit filed 12 March 2015 in support of this application he deposed to the fact that his father had died in January 2014, over a year ago. On the night of his father’s funeral, sadly his mother passed away also.

9. The father further deposed that there are court challenges to his parents’ wills that he is now involved in. He says nothing more about the circumstances surrounding those court challenges.

10. Significantly, the father also deposed to having to vacate his late father’s home in Brisbane, in which he had been living since 2013, by 17 March 2015. His evidence reads as though it was a matter he has had no choice in and that it is a matter of compulsion. He then deposed to a decision to return to Region J to live. About that decision to move back there the father said this in his affidavit:

    The only property I own is in [Region J]. Luckily my tenants are not renewing their lease come Friday 27^th March 2015. This is the beginning of a weekend the child is with me. I am returning to live in [Region J].

    …

    I am now looking forward to resuming my life in [Region J] that has been home to both the child and myself for several years.

11. Reading that affidavit evidence, one could be forgiven for understanding the father as presenting the case that he was compelled to leave his late father’s home and had no alternative but to move back into his Region J property that, fortunately, was becoming available for him to occupy.

12. However, at the hearing on Monday, 11 May 2015, the mother, who appeared without legal representation, told the Court the father is not even living in his Region J property but lives elsewhere in Region J. When asked if this was true, senior counsel for the father informed the Court, after taking instructions, that indeed the father was renting out his Region J property and was living in other premises that he had himself rented.

13. That left the Court without any evidence explaining the apparent change of position from that presented in the father’s March affidavit and not understanding the pressing nature of the asserted need for the father to actually return to Region J when he did.  The fact that he has been living in Brisbane for over a year since his parents both died early last year, supports a finding that but for the accommodation issue there was no pressing or compelling reason why he had to move back to Region J. In fact, he offered none in his affidavit other than the accommodation issue. 

14. What is now quite apparently clear, whether the father was compelled to move out of his late father’s home or not, he did not have absolutely no alternative but to move back to his own property in Region J. The fact that he is not living in the property now supports such a view.

15. The mother opposes the changes sought by the father on an interim basis. The Independent Children’s Lawyer, Mr Couper, also opposed them, particularly in so far as the proposal to discharge the requirement to take the child to his extra-curricular activities is concerned.

16. The mother deposed to the boy being “a committed, competitive and talented soccer player who is part of a team which competes weekly and trains 3 times a week”. She said that it is something that the child has shown “passion, talent and commitment towards” and that it would be “devastating for him not to be able to continue to participate in” it. 

17. The ICL referred the Court to a passage of the family report prepared by Ms N in June 2014 that supported the mother’s position in this respect.

18. Significantly, the mother deposed that although he has applied to the Court for the discharge of current orders that create obligations on him in respect of the child and his sport, the father has, since filing that application, unilaterally not complied with the ordered requirement and has not returned the child to play sport on the weekends that he is with him. The mother deposed in her affidavit of 24 April, 2015 that the father had done this two times since filing his application just over a month before that. The mother deposed that the child was very upset about this and “felt he had let his team down”. The mother deposed to the father allegedly having told the child that he is unlikely to be able to facilitate his attendance at future sporting commitments now that is living in Region J again. She deposed that this has “affected the child considerably”.

19. Further, the mother deposed that the father has also collected the child from school earlier than he should have pursuant to the existing orders on one occasion since he moved back to Region J and delivered him back to school on the Monday morning two and a half hours late on one occasion and five hours late on another occasion.

20. The mother deposed that the father’s  “family, partner and current employment are all in Brisbane” and she asserted it is the father’s lifestyle choice that has taken him back to live in Region J. The father made no reply to those assertions nor sought to in any form at the hearing on Monday 11 May, 2015.  His position that he is prepared to forego the benefit of an existing order that has the child with him overnight on the Sunday night of every alternate weekend is a curious one, in all the circumstances.

My decision

1. The orders the father seeks are parenting orders. In deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. In determining what is in the child’ best interests the court must consider the matters set out in s 60CC(2) and (3) of the Act.

2. In circumstances, where:

   ·There is only just under three months until the final hearing of the contested parenting orders applications of the mother and the father;

   ·C’s football season is under way;

   ·The evidence that he is “obsessed” about his football and very upset about missing it is undisputed;

   ·The father has, prima facie, demonstrated little regard for the existing orders despite having applied to discharge them;

   ·I am, at this time, far from satisfied that the father was actually compelled to return to live in Region J in March this year or that he is compelled to continue living there or that moving back to Region J was anything other than a lifestyle choice;

   I am not persuaded that an interim change to the existing parenting orders is in the child’ best interests and I will, accordingly, dismiss the father’s Application in a Case filed 12 March 2015.

3. One order I am satisfied that I should make though, on the uncontested evidence before me, is to require the father to return the child to the mother in Brisbane on the Sunday afternoon at the end of each alternate weekend that the child is with him if he considers that he is not going to be able to return the child to his school before the scheduled start of school on the Monday morning.

4. I will also list the matter for a pre-trial directions hearing so that the Court can be satisfied that it will be ready for the trial that is currently listed for this coming August.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 19 May 2015.

Associate:

Date:  19 May 2015