Schmidt and Arlesworth

[2008] FamCA 18

FAMILY COURT OF AUSTRALIA

CRAB & CRAB [2008] FamCA 18

FAMILY LAW – CHILDREN – Recovery Order – Wife’s relocation – Interim orders – Part heard

Family Law Act 1975 (Cth)

APPLICANT: MR CRAB

RESPONDENT: MS CRAB

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9152 of 2007

DATE DELIVERED: 17 JANUARY 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: YOUNG J

HEARING DATE: 17 JANUARY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS JOHNS

SOLICITOR FOR THE APPLICANT: FORTE FAMILY LAWYERS

COUNSEL FOR THE RESPONDENT: MS WYNNE

SOLICITOR FOR THE RESPONDENT: JOHN SNODGRASS & ASSOCIATES

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS AGRESTA

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: PEARSONS SCHETZER & ASSOCIATES

ORDERS

1. THAT the further hearing of the application in a case filed 6 December 2007 and the response thereto filed 10 January 2008 be adjourned part-heard before Young J. on 4 March 2008 at 10.00 a.m.

2. THAT each of the Form 1 applications and the response to final orders both likewise filed be adjourned to 4 March 2008.

3. THAT pursuant to s11F of the Family Law Act 1975 the husband and wife each forthwith confer with a Family Consultant to discuss all children’s issues and in particular time spent with orders and travel arrangements and generally options of the future residence of both parties and how that may impact upon the children – such attendance to be confidential and no report to be produced to the Court.

4. THAT such appointment pursuant to s11F not take place until on or after Monday 11 February 2008.

5. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

6. THAT by way of variation of paragraph 3(b) of the Orders made by consent on 17 October 2007:

   (a)the wife be responsible for driving the children on each alternate Wednesday commencing 30 January 2008; and

   (b)the husband be responsible for organising the transport of the children on each alternate Wednesday commencing 23 January 2008.

7. Pursuant to s 62B and s 65DA, 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

8. THAT on or before Thursday 31 January 2008 the husband make, file and serve an amended application of orders sought.

9. THAT on or before Monday 18 February 2008 the wife make, file and serve an amended response.

10. THAT on or before Monday 18 February 2008 each of the husband and wife make, file and serve an updated and detailed Form 13 financial statement.

11. THAT the updated application and response be filed without any accompanying affidavit but that both parties make, file and serve an updated affidavit on or before Thursday 28 February 2008.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for all parties.

IT IS NOTED

A.THAT currently there are no orders otherwise providing for the travel requirements of the parents to facilitate the time spent with orders but the wife has previously and has advised the Court this day that she will undertake the weekend travel and that is to continue until the adjourned hearing date.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Young delivered this day will for all publication and reporting purposes be referred to as Crab & Crab

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9152 of 2007

MR CRAB

Applicant

And

MS CRAB

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter is before me in the Judicial Duty List.  Ms Johns of counsel appears for the husband, Ms Wynne of counsel appears for the wife and Ms Agresta appears for the Independent Children's Lawyer.

2. The background to this matter is that final orders were made by consent before Brown J on 17 October 2007.  Those orders were both as to children and parenting matters and as to property matters.  At that stage a second respondent, S Constructions Pty Ltd, was a party to the proceedings.  That company is the product of the husband's parents.  They are not involved in the proceedings now before the court.  They were relevant to the ownership of a property in N which was the former matrimonial home. 

3. By the terms of the negotiated property settlement, the wife received $12,000 and must now uplift the caveat on that property at N.  This she is yet to do, but soon must be done.  The wife did vacate the property in accordance with the provisions of the order.

4. As to children, the parties have two sons:  M, born in April 2004 and now approaching four years of age and A, born in November 2005, now two years of age.  The orders provide that they are to live with the wife.  The parties were to have equal shared parental responsibility and the husband's time to be spent with the children and level of communication was identified in paragraph 3 of the order.  In summary, the husband sees the children each weekend - on the first weekend from Saturday morning until Sunday evening an on the other weekend, during Sunday from 9.30 a.m. until 7.30 p.m.  Otherwise on each Wednesday for three and a half hours and on birthdays and Father's Day and otherwise on holidays as agreed.  The children, of course, are not yet of school age.

5. At the time the orders were pronounced, the parties had separated and the mother was living in the N home.  Prior to separation there had been considerable conflict and issues of a violent nature as between the parties.  There are various allegations in affidavits currently filed as to the mother's past drug use and as to the father's consumption of alcohol and violent behaviour.  Of necessity I must be aware of those matters because of the affidavits that I have read which I will shortly identify.  Additionally, as a result of incidents as between the husband and wife, there are currently criminal charges against the husband and which are due for hearing in the Heidelberg Magistrates Court in March of this year.  The charges are annexed to the recent affidavit of the husband filed 15 January 2008, but they, in general terms, concern a threat to kill or an attempt to stab the wife with a knife.  There is a current intervention order against the husband, the terms of which are exhibited to his affidavit.  The husband was granted bail and there are issues of alleged breach of his bail conditions on two occasions.

6. The current matter before the court arises by an application in a case which the husband filed on 6 December 2007.  The background to that application was that the wife moved to and rented premises in F in rural Victoria where she now lives.

7. The orders sought on behalf of the husband were for a return of the children to him, for a recovery order to issue, for an injunction to be imposed on the wife from changing the children's permanent residence to a location more than 10 kilometres from where the husband continues to reside in his rented flat and otherwise generally for all of the orders made by consent before Brown J to be continued.  In support of the application the husband filed two affidavits, 6 December 2007 and 15 January 2008, both of which I have read. 

8. The wife's response is filed 10 January 2008.  She has filed both a response to final orders sought and to interim orders.  She seeks now to be permitted to relocate to F in rural Victoria, seeks to discharge the time spent order each Wednesday and on the alternate Sunday and otherwise various injunctions and specific orders as detailed in that formal, final application.  By way of interim orders the wife seeks again to amend the current time spent with orders by decreasing the time and, therefore, the travel and other specific issue and injunctive orders.  The wife has filed an affidavit on 10 January with various exhibits which I have read. 

9. I have had, over the course of several hours, lengthy and somewhat emotive addresses from counsel.  That is not said critically, because there are significant issues in this case. 

10. At the heart of the current application is the fact that the wife, without knowledge to the husband, departed the N area and rented a property on a one-year lease in F.  She paid a bond of $823.  The weekly rental is $190 a week.  I find that there was likely knowledge or a very substantial suspicion by the husband's mother of the wife's move to F prior to it occurring.  Clearly the wife was not forthcoming in giving up information of the intended move and her new lifestyle and that of the children. 

11. The husband had earlier endeavoured to locate accommodation in the nearby suburb NN where the rent was approximately $300 per week.  His complaint is that the wife neither accepted nor rejected same, but largely ignored his efforts to find her accommodation. 

12. The wife's response is that she is fearful of the husband.  There are substantial criminal charges outstanding upon which I make no finding as to the facts or guilt or otherwise.  They are to be determined by another court at another date and time.  What is clear is that they are serious and may substantiate the fear and concern of the wife.  The wife was also keen to establish a new life for herself outside the immediate dominance and control of the husband and his family.  That, in my opinion, is evidenced by the unsatisfactory application for the court to restrict to 10 kilometres from him the wife's residence knowing that the children live with the wife, she being their primary carer.

13. Financial matters are a real issue in this case.  The wife receives a single mother's benefit.  She has a rental subsidy of approximately $70 a week and pursuant to a curious notation made pursuant to the orders of Brown J on 17 October 2007 the husband is to cause to be paid to the wife child support in a sum of $300 per week for a period of 14 months.  What happens after 14 months is unknown.  That child support effectively could be seen to be a form of rental subsidy because it equates to what may have been the intended rental of the NN property identified by the husband prior to the orders being finalised. 

14. The current financial circumstances of the husband are not satisfactorily before the court, save that I have been told that he is a tradesman and lives in rented accommodation.  The reason for sale of N is not currently a factor as it is owned by the husband's parents who are not party to this proceedings.  I am told the N home is to be sold and will not be available to the wife and children. 

15. The current orders must be considered in the context of the current orders and what is in the best interests of the children.  They have a right to a meaningful relationship with both parents and Ms Johns has stressed that approach.  The current time spent with orders clearly provide very substantial time for the children to be with their father and, at his option, with his extended family. 

16. The affidavit material is lengthy.  The essence of the request by the husband is that the wife, within three weeks, return to Melbourne leaving aside any financial consequences of breach of her current lease in F and find accommodation within 10 kilometres of his house.  The wife's position is that she would now stay in F and commute and do all of the driving to comply with the current time spent with orders.  The husband no longer holds a motor vehicle licence.  It has been suspended for a period of some 18 months as a result of registering .151 on the breathalyser last year.  There is no evidence before the court of other people and their ability to drive or have time to assist the husband enjoy his considerable time spent with periods with his two young sons.

17. There is before me no available evidence as to accommodation open to the wife in Melbourne.  What is the geographical boundary of Melbourne is a significant issue in this case.  I have conveyed a preliminary view to Ms Johns that I would reject any concept of a boundary fence being built within 10 kilometres of the husband's residence and that the wife and children must there live.  Ms Johns had the flexibility to amend her orders sought to 15 kilometres, but likewise I would find such a limitation inappropriate.  The wife is entitled to live in proper accommodation where she feels safe and secure, provided the children have adequate time with the husband and their best interests are maintained.  It may be that the wife would better have been served by obtaining accommodation within Melbourne and all of its western or northern suburbs.  There was no limitation as to where she could live.  There were no restraining orders, there were no notations to the orders in that regard. 

18. I approached this case both on the basis of what is in the best interests of the children and also on the basis of appropriate evidence required for injunctive orders.  The recovery application was wholly misplaced.  It should not have been drawn and filed on the basis that it was.  There was and remains no right of recovery.  The children live with their mother and they are enjoying time with the husband. 

19. I need to make reference to the interim orders of Watt J of 20 December 2007 whereby the Independent Children's Lawyer was appointed.  The application was adjourned to this day and various other orders were made for time to be spent with the children upon the basis of a limited suspension of paragraphs 3(a) and (b) of those earlier final consent orders pronounced before Brown J.  That suspension period pursuant to paragraph 6 of his Honour's order concluded on 29 December and there were then other orders to operate through January.   

20. There is no complaint before me of the husband having missed any period and the wife has been driving.  The observation clearly is that cost of travel is expensive, the children have substantial periods within the motor vehicle and also given the time it concludes on a Sunday, that is 7.30 p.m., it is particularly long and uncomfortable for the children as that they would be leaving home by 8.00 a.m.  All those matters I have considered.

21. This case does raise the difficult issue of the rights of a parent to live within or close to a city, the geographical distance between respective rental properties, what is a relocation issue and what is mere travel arrangements to accommodate a time spent circumstance.  I reserve all aspects of my opinion in this regard, as I propose to adjourn part-heard before me all applications.  I do so first because it is now after 4.30 p.m.; and secondly, because further and better evidence should be before the court as to the options available to the wife and the husband and more realistic alternatives. 

22. There has been a helpful, though active exchange of submissions from counsel, many questions remain unresolved.  It may be that the wife can and will look to obtain accommodation on the northern rail lines as Ms Johns would think to be helpful.  It may be that she would find closer accommodation in the outer northern suburbs or other suburbs or outlying areas of the city of Melbourne.  I have no fixed requirement.  I do not disqualify F as a possible future permanent venue, all of those matters need greater consideration.  There must be a very real issue about the welfare of the children and their time spent travelling, blended with the security of their domestic arrangements, the wellbeing and physical and emotional safety of the mother and all financial concerns. 

23. Both parties have approached this case from a somewhat self-interested position, that is, how the orders affect them.  I say that with the qualification that these are consent orders and I give a very due and significant weight required by orders that are made by consent.  Watt J has already varied, on an interim basis, the orders though currently today they revert to that which was ordered.  There is an order for the wife to deliver the children to the husband's residence at the commencement and to collect them at the conclusion.  I do not understand that that order is necessarily ongoing for every period of time.  It may be that is what it is intended to be, but I will, for the sake of clarity, subsequently discharge paragraph 8 of the orders of Watt J. 

24. I have determined on an interim basis and as a part-heard matter before me not to interfere with paragraph 3(a) of the original order.  I will likewise leave the majority of the orders in place, but as to the Wednesday, I propose to require the wife to be responsible for travel on one Wednesday and the husband on the other Wednesday.  I well understand that is a variation of the interim order, but it is, in the circumstances, I find, proper, reasonable and not unduly harsh to the husband.  Generally, I find it is in the interests of children to make that adjustment.  The husband can certainly spend three and a half hours in F during summer productively with his children.  The matter will be back before me before the end of daylight saving. 

25. I will require the parties to file again the orders that they seek with some particularity and amendment to reflect a thoughtful, commonsense outcome.  I will require both parties to file a Form 13 financial statement. 

26. I do intend, though it may be of restricted benefit, to refer these parties to a family consultant under section 11F to generally discuss welfare and best interests of the children, the benefits to the children and the outcome to the children of these proceedings and try and work through some of the conflict that is evident from the documents.

27. I will have these reasons transcribed.  I will make orders only until that due date.  I will carefully ask of the parties on that due date how they have complied with the orders.  I will ask of the wife as to the uplifting of the caveat.  I will inquire of the husband as to the continued payment of the $300 and have some better understanding then of their individual financial circumstances.  I leave open the opportunity of the husband to file an affidavit from his parents, or one of them, as to their particular circumstances vis‑a‑vis travel and assistance to the husband.  I record it is unfortunate that I have only available 4 March and that date predates the Magistrates Court proceedings.

28. They are the only reasons I intend to give at this stage, save to emphasise that the matter is and remains part-heard before me.  

29. MS AGRESTA:   Your Honour, can I just raise one other thing that my friend brings to my attention, that you indicated in your reasons for judgment that the order of 17 October was varied by Watt J on 20 December. 

30. HIS HONOUR:   The order of  - no, it wasn't varied.

31. MS AGRESTA:  I think you said that in your reasons. 

32. HIS HONOUR:   I didn't mean to.  What his Honour did was to suspend certain paragraphs and then provide for differing ‑ ‑ ‑

33. MS AGRESTA:   He just reset the times in a sense, your Honour, that's all.  He's just reset the times, not varied it. 

34. MS JOHNS:   There was a suspension to 29 December, thereafter his Honour simply stated, I think, to assist the parties that the 17 October orders were to prevail and confirmed particular dates pending the adjourned hearing as to when the children were to be made available.

35. HIS HONOUR:   Yes, thank you.  I incorporate that explanation within the reasons from Ms Agresta and Ms Johns and the transcript of the reasons can incorporate this discussion.   

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

………………………………………………………..
Associate:          
Date: 23 January 2008