Portlock and Candelent

[2007] FamCA 539

FAMILY COURT OF AUSTRALIA

PORTLOCK & CANDELENT [2007] FamCA 539

FAMILY LAW - CHILDREN – With whom a child lives - Contested final application concerning 6 year old child who lived all his life in M – The mother unilaterally moved to E – Issue ultimately negotiated on basis of competing proposals and consent orders made.

APPLICANT: Mr Portlock

RESPONDENT: Ms Candelent

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1181 of 2007

DATE DELIVERED: 8 May 2007

PLACE DELIVERED: Mildura

JUDGMENT OF: Guest J

HEARING DATE: 8 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Melilli

SOLICITOR FOR THE APPLICANT: Cynthia A Toose

COUNSEL FOR THE RESPONDENT: Mr J Williams

SOLICITOR FOR THE RESPONDENT: Berry Family Law

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr J Watson

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Watson & McLeod

Orders

1.   That all previous parenting Orders be discharged.

2.   That the Mother and the Father have equal shared parental responsibility for the child of the relationship, a son, born on the … of October 2000 (“the child”).

3.   That the child live with the Father.

4.   That the Mother spend time with and communicate with the child as follows:

a.   During school term for a total of 12 weekends in a year made up as follows:

i.Four weekends in M from 5.00pm Friday to 5.00pm Sunday on dates to be nominated by the Mother by giving no less than 30 days prior written notice to the Father.

ii.Four weekends in Melbourne from Friday afternoon (the child to travel on the 5.00pm flight from M) until Sunday afternoon or Monday on a long weekend on dates to be nominated by the Mother by giving no less than 30 days prior written notice to the Father.

iii.Four weekends in Melbourne from 7.00pm Friday to 7.00pm Sunday with changeovers to occur at either B or G on dates to be nominated by the Mother by giving no less than 30 days prior written notice to the Father.

b.   During school term holidays in Melbourne on each occasion from 10.00am Wednesday until 5.00pm the following Sunday on dates to be agreed. 

c.   During the long summer vacation for a period of two weeks in Melbourne on dates to be agreed but in any event in odd numbered years such time to include the entirety of Christmas Day and in even numbered years such time to commence at 3.00pm on Christmas Day. 

d.   By telephone at reasonable times in the absence of the Father and not on speaker phone.

e.   At such other times as may be agreed. 

5.   That all time spent by the Mother with the child during school terms be on dates to be agreed and in default of agreement on the 2^nd, 4^th and 6^th weekend of each school term.

6.   That the parties share equally the cost of all airfares for the child’s travel to and from Melbourne.

7.   That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders. 

8.   That all extant applications for final orders be otherwise dismissed and removed from the list of cases awaiting hearing.

9.   Certify for Counsel and Solicitor appearing as Counsel.

IT IS DIRECTED

a.   That the Minute of Consent Orders remain on the Court file.

b.   That the solicitors for the Applicant Father engross the Orders in accordance with the proforma direction of Justice Guest.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1181  of 2007

Mr Portlock

Applicant

And

Ms Candelent

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me in the Judicial sittings of the Family Court of Australia at Mildura.  It is a welfare application involving the son who was born on … October 2000.  He is six years and seven months of age. 

2. A short background of the matter is as follows.  The applicant father was born on … August 1962 and is 44 years of age.  He resides at M.  He is a salesman by occupation and has been engaged in the same employment now for the past approximate 13 years.  He commands an income of about $45,000 per annum plus the use of a motor vehicle. 

3. The respondent mother was born on … November 1963.  She is 43 years of age and currently lives at E.  At the commencement of the proceedings I was informed she worked at L and commanded an income approximately the same as that of the father.  Prior to her departing M and relocating to E in October 2006, she worked with a firm of accountants for about four years and commanded a reasonable income.  As I understand it from the helpful submissions of Mr Williams, her employment position has changed to that of R as at last weekend.

4. With that background in any event, the parties commenced cohabitation, on the mother's version in April 2000, the father asserting it was in September 1999.  They fell upon unhappy times and separated, on the mother's version in February 2004, the father asserting it was November 2003.  It matters not the precise date of their commencement of cohabitation or separation.  As I said, the mother relocated to E in October 2006.  There were issues concerning the basis underlying her relocation and an alleged agreement between the parties which I do not dwell upon.  That was a matter of contest.

5. In the result, the father caused to be issued a Form 1 Application on 6 December 2006 seeking that the child live with him in M.  The mother filed a Form 1A Response on 25 January 2007 seeking that the child reside with her at E.  A series of orders were made, the first being ex parte orders made at the Magistrates Court on 11 December 2006.  The child was to live with the father.  Later, on 25 January 2007, those orders were discharged upon the undertaking of the mother not to remove the child from the father's care.  Since February 2007 there were court orders made on 5 February 2007 by Registrar Field providing for the mother to spend time with the child. 

6. Set into the background circumstances is the fact that the father has three children from a previous marriage, namely, daughter S who is 16 years of age, son Y who is 14 years of age and son J who is nearly 11 years of age.  He “spends time with” those children four days per fortnight on a regular arrangement.  The mother has three children of an earlier union, namely son D who is 15 years of age, son B who is 13 years of age and daughter P who is 12 years of age.  Both D and B live with their father in M.  P lives with her mother at E. 

7. It is with that background that the proceedings commenced before me last week and there were negotiations between the parties.  However, a resolution was not achieved and it commenced before me on 7 May 2007, as a contest. 

8. I make it clear that in approving these orders I have read all the documents relied upon by the parties and have given very careful consideration to the report of Mr H.  I have earlier, in a number of comments in debate with all counsel, made various commentary in relation to a particular view I took on certain aspects of his report, which at times I found to be quite unhelpful, to put it quite bluntly.  In any event, there were many other aspects of that report that were in issue between the parties. 

9. Last week, by reason of the contested issues between the parties and the matters that were drawn from Mr H’s report, and with the support of all counsel, I made an order for the appointment of an Independent Children's Lawyer.  That was rapidly done and Mr Watson now appears as the Independent Children's Lawyer.  Mr Melilli continues to appear for the applicant father.  I was greatly assisted by the helpful comments from time to time from Mr Watson who was able to make all relevant inquiries, sufficient to arm him with up to date information in order that he could discuss general issues with the parties.  I thank Mr Watson for his very helpful input in the matter.

10. The contested applications did not proceed to either party giving evidence, for it was plain on the face of the material to me, as a preliminary view, that the child’s best interests would be served by his continuing to reside in M.  In considering the consent orders, they are final residence proceedings and I bring to the forefront of my mind that it is the best interests of the child with whom I am concerned. 

11. It is blunt, but correct to say, that the mother did unilaterally elect to move from M to reside at E.  The move from M, where the child had lived all his life was, and I make it clear, her own decision.  It did not appear to me that proper consideration was given by the mother to the move and that it was motivated more by personal need than all the persuasive factors supporting the child’s best interests, his life and family in M. 

12. What is clear in approving these orders is that M is where the child has lived, surrounded in circumstances of comfort and security.  This is the regional town where he goes to school.  He has peer group relationships.  His broader family live in M including his paternal grandparents and his maternal grandmother.  His three step-siblings on his father's side all live in M and he sees them four days per fortnight.  His contact with them has been both regular and constant. 

13. The mother has three children, two of whom also live in M with their father.  They are 15 and 13 years of age.  The mother had employment in M and for her own reasons, as I said, moved to E.  She has employment there.  She also has the advantage of a cousin who lives opposite who has three children aged 14, 12 and five years, although there was no mention of that resource in the affidavits or in her discussions with Mr H. 

14. I have no doubt at all that these consent orders are appropriate in the circumstances and I propose to make them.

I certify that the preceding fourteen  (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  4 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as PORTLOCK & CANDELENT