RATKINE & DANNETT

[2011] FamCA 149

FAMILY COURT OF AUSTRALIA

RATKINE & DANNETT [2011] FamCA 149

FAMILY LAW - CHILDREN - interim injunction restraining removal of children  FAMILY LAW - RELOCATION –interim application to relocate children from Sydney to B (country NSW).

Family Court Act 1975 (Cth) ss 61DA and 68B(2)

APPLICANT: Mr Ratkine

RESPONDENT: Ms Dannett

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAC 6191 of 2007

DATE DELIVERED: 23 February 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rose J

HEARING DATE: 22 February 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Neisha Shepherd, Solicitor

SOLICITOR FOR THE RESPONDENT: Humphreys & Feather

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER C Hafey

Orders

1. That the mother is restrained from relocating the three children of the marriage from their current residence in Sydney without the written consent of the father and the independent children’s lawyer or by order of the Court.

2. That the mother is restrained from removing the three children of the marriage from their current schools without the written consent of the father and the independent children’s lawyer or by order of the Court.

3. That the mother provide to the solicitor for the father and the independent children’s lawyer no later than seven (7) days prior to the date fixed for the substantive hearing copies of the following documents:

   (a)       Application for and acceptance of employment in B.

   (b)The mother’s communication with schools in B in relation to the enrolment of each of the three children.

IT IS NOTED that publication of this judgment under the pseudonym Ratkine & Dannett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  PAC6191 of 2007

Mr Ratkine

Applicant

And

Ms Dannett

Respondent

REASONS FOR JUDGMENT

Introduction

1. The independent children’s lawyer, by her Application in a Case filed 18 February 2011, sought injunctions which, if made, required the mother to be restrained from relocating the children, the subject of these proceedings, from their current residence in Sydney without the written consent of the father and the independent children’s lawyer or by an order of the Court.  Secondly, that the mother be restrained from removing the children from their current schools without the written consent of the father and the independent children’s lawyer or by an order of the court.  In addition, orders were sought in relation to provision of certain documentation.

2. The mother by her Response filed 22 December 2011 sought orders permitting her to relocate with the children to B, (in country NSW), and that the application of the independent children’s lawyer be dismissed.

3. There are four children of the marriage.  However, only three of them are the subject of the pending proceedings (“the three children”):

   (a)O who is 14 years of age having been born in November 1996.

   (b)W who is 11 years of age having been born in June 1999.

   (c)T who is 9 years of age having been born in October 2001.

4. The three children live with the mother.

5. On 11 February 2011 the mother’s solicitors gave notice on 26 February 2011 of her proposal to relocate with the three children to B.  That was for the purpose of commencing “her new employment” on 7 March 2011.  The notice given by the mother was made in accordance with Order 3 of the Orders made on 3 February 2011.

6. The mother’s proposed relocation with the three children is opposed by the father and the independent children’s lawyer.

7. The Affidavit of the mother sworn 21 February 2011 gives evidence in relation to the following matters.

8. The mother resides in Sydney with her husband and the three children on a property owned by the mother and husband.

9. The mother had given previous notice of a proposed relocation to B as set forth in her Affidavit sworn 24 January 2011.

10. The mother’s last scheduled day of her current employment is 25 February 2011.  The mother states that she will be without income if unable to commence work in B on 7 March 2011 and that it is difficult to find temporary work in Sydney.  The mother refers to her and her husband having leased their property in Sydney.  However, a copy of the purported lease was not produced.

11. The three children are enrolled in schools at B.

12. The mother’s further affidavit evidence is that the three children resist seeing the father and that they are aware from the mother of the proposed move to B.

13. Annexure A to the mother’s affidavit is an undated written offer of employment to the mother at Business 1 in B for the period 7 March 2011 to 30 May 2011 being approximately 12 weeks.

14. Extensive oral submissions were made by the legal representatives for the parties when this matter was listed before me at the request of the independent children’s lawyer in the duty list on 22 February 2011.

Historical background

1. It is relevant to note previous interim parenting orders that have been made.  They include the following.

2. On 28 July 2008 the independent children’s lawyer was appointed.  Orders were made by consent to provide for the three children to live with the mother and for them to spend periods of time with the father.

3. On 22 September 2008 the Orders made on 28 July 2008 were discharged.  Orders were made requiring the three children to live with the mother with the father to have supervised periods of time with them at C Contact Centre.

4. On 10 August 2009 supervised periods of time were ordered to be spent by the father with the three children.

5. On 21 August 2009 further orders were made to provide for the father to spend supervised periods of time with the three children.

6. On 1 October 2009 case management directions and orders were made for the purpose of defining the issues, directions for the filing and service of affidavits and fixing the hearing for four days from 7 February 2011.

7. On 3 February 2011 the dates for the trial were vacated and new dates for hearing fixed for a period of three days from 11 April 2011.  It was on that day that the mother was ordered to provide 14 days written notice of any proposal to relocate with the three children, to which earlier reference has been made.

Conclusion

1. I have determined to make the orders as sought by the independent children’s lawyer having regard to the following findings and reasons which I will now set forth.

2. I will make the orders as sought, on an interim basis, having regard to the best interest of the three children, despite the difficulties which may arise by the mother being restrained from moving with the three children from Sydney to B for the following reasons.

3. It may create changes to the three children’s lives at this stage pending a hearing in April and create more instability given that the three children will have to cope with the following changes.  Those changes represent a change of residence from Sydney to B, enrolment and becoming acquainted in new schools, a possible return to Sydney if there is no further employment for the mother after 12 weeks, and orders being made following the hearing in April 2011 which may yet again require a change of residence and schools.

4. The affidavit of the mother is silent as to her proposals for further employment in B following the conclusion of the proposed employment of 12 weeks at Business 1, and the ability to continue to reside with the three children in B.

5. Those proposals and the practical consequences of the mother’s proposed move to B based on her affidavit evidence, as well as potential further changes, on the face of it, hardly promote stability for the three children being a factor which, ironically, is emphasised by the mother in her affidavit.

6. Whilst the mother undoubtedly complied with the requirement to give notice of her intention to relocate, it should have been obvious to her that taking the next step in the change of employment and leasing her property without a court order was a significant risk to providing a settled environment for the three children.

7. In effect, the mother has sought to create a fait accompli for the father and the independent children’s lawyer.

8. On the face of it, the steps that the mother has taken are extraordinary.

9. However, it may be that further evidence to be given at the final hearing fixed to take place in April may throw more light on the mother’s proposals so that they can be viewed in a different way than following a truncated hearing of an interim application which had to be heard in the duty list yesterday.

10. The mother’s affidavit does not contain any proposal for time to be spent by the father with the three children on a supervised or unsupervised basis.

11. Mr Cumming solicitor, agent for the mother’s solicitor, obtained further instructions in relation to supervised time in D, being four hours travel each way from B to commence possibly in a fortnight.  Apparently, there are no facilities for supervised time to be made in B.

12. Section 61DA of the Act provides that there is a presumption of equal shared parental responsibility that applies when parenting orders are made.  None of the interim orders to which I have referred contain any term, order or condition which rebuts that presumption.

13. Consequently, the father and mother have equal shared parental responsibility as part of the presumption that applies when each of the interim parenting orders were made.  Equal shared responsibility required them to have joint responsibility for major issues affecting the children, which include but are not limited to the place of their residence and their education.

14. On the evidence before me, the mother has acted unilaterally in relation to those matters.  That is an important matter which I take into account and cannot be merely subsumed by the fact that notice was given by the mother, as opposed to decisions being made for the purpose of implementing that notice revolving around change of residence from Sydney to B and change of schools.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose delivered on 23 February 2011.

Associate: 

Date:  8 March 2011