Stevens and Maloney

[2007] FamCA 1562

FAMILY COURT OF AUSTRALIA

STEVENS & MALONEY [2007] FamCA 1562

FAMILY LAW – CHILDREN – Unilateral relocation – Application to order return – Effect on existing orders for father to spend time with children – Return ordered

Family Law Act 1975 (Cth)

HUSBAND: Mr Stevens

WIFE: Ms Maloney

FILE NUMBER: MLC 12036 of 2007

DATE DELIVERED: 26 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 26 November 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms M.L. Smallwood

SOLICITOR FOR THE HUSBAND: Pearsons Schetzer & Associates

COUNSEL FOR THE WIFE: Mr J.M. Salamanca

SOLICITOR FOR THE WIFE: Bruce C. Chalmers

Orders

1. That until further order the wife be and is hereby restrained from removing the residence of the children R born … June, 1999 and C born … August, 2001 from the Melbourne metropolitan area PROVIDED THAT the children may reside elsewhere during any period of school holidays during which they live with the wife and during weekends on which they live with the wife.

2. That until further order each of the parties, their servants and agents be and are restrained from:

   (a)discussing the proceedings in the presence or hearing of the children;  and

   (b)denigrating the other party or members of the other party’s family in the presence or hearing of the children.

3. That the applications for interim parenting orders and injunctions be otherwise dismissed.

4. That the applications for final orders be referred to the Case Management Judge for urgent consideration of the need for priority, and to facilitate that consideration, the parties have leave to file (whether separately or as a joint document) a document in dot point form setting out the reasons for which priority is sought.

5. That pursuant to s.68L(2) of the Family Law Act1975 the interests of the children R born … June, 1999 and C born … August, 2001 be independently represented by a lawyer  AND IT IS REQUESTED  that Victoria Legal Aid arrange such independent representation.

6. That forthwith upon appointment by Victoria Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

7. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

8. That upon appointment of the independent children’s lawyer, the parties consult with the independent children’s lawyer as to the appointment of an appropriate psychologist to prepare a family report, with as much expediency as is possible.

9. That pursuant to s.62B and s.65DA(2), of the Family Law Act1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

10. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

11. That the preparation of these orders be expedited forthwith.

12. That pursuant to Rule 19.50 of the Family Law Rules2004 this matter reasonably required the attendance of counsel and a solicitor appearing as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12036 of 2007

MR STEVENS  

Husband

And

MS MALONEY  

Wife

REASONS FOR JUDGMENT

1. This case concerns parenting arrangements for two children, in respect of whom orders were made, by consent, on 12 May 2006.  The parties married in October 1992, separated in 2003 and divorced in May 2005.  They have two sons, R who is eight, and C who is six.  Those boys were, respectively, four and two when they separated.

2. The original file, which is in court, shows that orders in relation to the parties’ children, R and C, were made as the consequence of a joint application for consent orders, which was filed in this court on 15 September, 2005.  It took some time for those orders to be made, probably due to requisitions relating to financial aspects and, in particular, a flagging order in respect of the husband's superannuation.  The file notes a number of listings in 2005 and 2006 and it was not until 12 May, 2006 that final orders were made.

3. The husband is a member of the public service.  He received a promotion in April this year.  He is based in Melbourne’s Western Suburbs and is tenured there until 2009.  Until her very recent move, the wife was working in the Finance Sector, and living with the children in a house she had acquired in an outer Melbourne Suburb.

4. The 2006 orders provided for the children to live with the wife and for the husband to have contact, to use the then language, on alternate weekends, (with starting times dependant on whether he was working or not working on the day) for two extra nights in each calendar month, during school holidays and at other special times.  After the orders were made, the parties implemented the arrangements with some flexibility. To the wife’s credit, they accommodated the husband’s work roster and made a number of changes mainly tailored to his calendar.

5. The orders provided for the children's parents to have joint responsibility for making decisions about the long‑term care, welfare and development of the children.  They were made just prior to the amendments to the Family Law Act1975, which operate from 1 July 2007. It is that amended legislation which governs this application and it creates a presumption of equal shared parental responsibility. 

6. The Act provides that equal shared parental responsibility involves joint consideration of decisions about major long‑term issues affecting children.  One such decision is a change to a child's living arrangements in a way that makes it significantly more difficult for the child to spend time with a parent.  At the heart of this case is a unilateral decision by the wife to move the children’s residence from Melbourne to the Victorian Coast.  This, under the amended legislation, is a major long-term decision and one into which both parents are required to have input, if there is an order for shared parenting.

7. On 24 September this year the wife told the children's father that she was engaged and was going to put her house in outer Melbourne up for sale.  In her affidavit she agreed that she told him that “things were developing”, that she was engaged and that it was her intention to sell her house and move to her fiancé’s house.  The fiancé’s house was in the general Melbourne area.

8. The parties had attended a mediation session on 7 September, relating to another aspect of parenting.  It is not suggested by anybody that, at that meeting, this proposed move was raised by the wife.

9. The evidence of the husband is that on 7 October the wife told him of further “big developments”.  She said that she, her fiancé and her parents had made an offer to buy a caravan park on the Victorian Coast; they hoped to move there, in mid to late November.  She said she was moving for “lifestyle reasons”.

10. The wife deposes that she told the husband that she and her fiancé had been looking at a caravan park venture for some time.  Her evidence is of a belief that the husband reluctantly or begrudgingly (to use the words of her counsel) acquiesced.  On the other hand, she deposed that the husband was abusive when she raised the proposal, evidence which sits uncomfortably with a belief in acquiescence.  The husband’s evidence is that, from the outset, he was unhappy about the proposal and made it very clear that he would not agree to such a move.

11. An application was filed by the husband on 5 October.  On 10 October his solicitors wrote to the wife, making clear his objection, and expressing his belief that what she was proposing cut across the parenting orders which had been made by consent.  In a letter of reply, dated 12 October, the solicitors for the wife noted that the husband was refusing to discuss the matter or to attend mediation. They advised that the wife was prepared to do the driving necessary for the husband to spend time with the children. They said the husband's position was “technical and unrealistic”; the wife intended to continue with her proposal to relocate but was prepared to attend mediation.

12. The obvious inference is that the mediation the wife proposed was, in essence, to sort out how to make the move, as opposed to whether to make the move.  From the husband's perspective, there was little point in such a mediation, as he was not prepared to agree that the move occur.  Since that time, the parties have been intransigently opposed.  Subsequent correspondence between the parties' solicitors does not take the matter much further. 

13. It is now clear that the wife and children moved to the Victorian Coast last Thursday, the day after she swore the affidavit which was filed on the day she moved.  She, her fiancé (Mr M) and her parents, have moved to the Coastal Holiday Park.  They have arranged financing for that venture.  They say they have done the necessary due diligence and it is their aspiration to run that business, together.

14. The wife deposes that while she did refer to a country lifestyle, there are other reasons for the move.  One is to have more “quality time” with the children and the other is to financially secure her family's future.

15. These are interim proceedings. The court cannot make decisions about contested facts in issue.  That cannot be done until, if necessary, there is a trial and each of the parties has an opportunity to cross‑examine the other and witnesses, and to call witnesses. There is a good deal that is contested in the competing accounts, including the amount of time the husband has actually spent with the children, although in the context of this application that argument may be more apparent than real. 

16. The husband deposes that, pursuant to the existing orders, he has been spending 110 to 120 days per year with the children.  In a document annexed to her affidavit, the wife has (variously) highlighted in colour and marked the various days she asserts the husband has had with the children.  Her evidence is that this year, rather than having two extra nights in each month, he has routinely only had one night with the children.  On my quick calculation of her figures, she asserts he had 46 nights with the children in the first six months of the year and 43 in the second half, to date.  If you add in some time in December it will be clear that, even on her figures, the nights with their father will be into the 90s and perhaps close to 100.

LEGAL PRINCIPLES

1. There has been little mention of the law.  I am not critical of counsel for that;  they know it and they are entitled to assume that the court knows it.  I will say something, briefly, about it for the benefit of the parties. 

2. The provisions in the Family Law Act1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1). 

3. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration.  In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

4. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

5. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).

6. The legislative changes in 2006 were given a good deal of publicity.  That raised perceptions, some of which are inaccurate. The Act does not contain a presumption that children must spend equal time with both parents.  But even at this interim stage, the court must consider whether the presumption of equal shared parental responsibility applies and, if it does, whether it would be in the best interests of the children to spend equal time with both parents. 

7. In the very recent decision of Taylor & Barker [2007] FamCA 1246 the Full Court has elucidated the principles applicable to determination of an application to relocate the residence of a child. I have to say I find aspects of the judgment puzzling, but this is not the time for an analysis to determine the binding ratio of that decision. The Full Court made clear its view that the legislative changes (particularly those creating the presumption and the consequent need – if the presumption applies – of considering whether equal time is in the best interests of the children) do impact on the determination of relocation applications. As both parties now seek fresh parenting orders, the law which governs those applications is very different to that which existed when the orders were made in May 2006.

8. There is no doubt, as that case illustrates, that significant decisions about children are best made when the court is in possession of all the relevant facts rather than, as here, at a point where the evidence is disjointed and contested. 

9. The husband's submission is that the wife’s move was deliberately and wilfully pre-emptive.  It was made in the face of his clear opposition to it.  That opposition was amply evidenced when his solicitors wrote to the wife’s solicitors on 10 October; whatever the mother may or may not have believed he thought, she could have no doubt of his stance from that time.  The husband filed the application and he made his objection clear.  In the face of that, the day after swearing an affidavit (in which she did not say she intended to move the very next day) the mother took the children from their school and moved their residence to Coastal Victoria. 

10. The husband asserts that the interim orders proposed by the wife would entail about three hours of driving, would cut into his time with the children and adversely affect their time with him.  The wife's proposal (that contact be from 7:00 pm. on Friday until 5:00 pm. on Sunday) would mean they would have to leave his home about 2:00 pm. on Sunday, at the latest.  That is a significant incursion into his time with the children.  Travelling is wearying for the children and even if all the driving were done by their mother, it can influence children’s enthusiasm for the contact. 

11. The wife's submission is that the husband has exaggerated the time he spends with the children - I have already adverted to that - and his involvement in other aspects of their lives; that his response is - to quote her affidavit – “a kneejerk reaction” to prevent her from pursuing her family and financial goals;  that he has no comprehension about what is in the children's best interests;  that what is proposed would not impact on his relationship with the children;  that save for some involvement with Auskick, he has not had a significant involvement in other aspects of the children's day‑to‑day lives. In those circumstances, she should be allowed to move.

12. The wife has sold her home.  Her fiancé has sold his home.  I have a brief affidavit, sworn by Mr M. He has resigned his former position and moved to the caravan park. He has deposed to activities he would undertake with the boys.

13. I make it clear that, in my judgment, a number of matters raised in the evidence are not relevant when considering the primary issue to be determined, which is the husband's application that the wife be restrained from removing the children’s residence from the Melbourne metropolitan area, until further order.

14. I do not place weight on the husband's complaints about the lack of opportunities in the country.  I am not satisfied that any significant weight should be placed on the viability or lack of viability of the caravan park business, or the experience or lack of experience of those involved in it.  Significant weight should not be placed on the children's alleged attitudes.  They are eight and six.  They have been told by their mother about an exciting new venture.  At those ages it is their relationships and attachments which are important.  It is very hard for children of that age to have any real comprehension of what is involved in such a proposed move.  Nor do I place weight at this stage on the wife’s complaints about the state of the husband's house or whether he, as the wife deposes, displays mood swings in front of the children.  Whatever her expressed concerns, they are not such as to have persuaded her to seek a formal diminution in his time with them. 

15. The real issue is whether the move, at this time, is likely to impact so adversely on the husband's relationship with the children that it should be reversed, because contrary to their best interests.  The issue is not whether the wife has breached the order for joint parental responsibility, although that will no doubt be explored in due course.  It is not a determination of the applications for final parenting orders. 

16. Stability, security and predictability are good for children.  It is generally believed that it is not good for children to chop and change, and to move from one environment to another without full consideration, even if it is an environment in which they have lived before.  The children have moved, albeit very, very recently.

17. In essence, the wife sees the caravan park business as an exciting opportunity which can only advance the children's interests.  Her counsel has said that she is the primary parent and “almost the exclusive parent”.  That is overstating the case, but may be how she feels.  It is submitted that to force their return will be disruptive for the children and will “punish” them. 

18. On the material before me (even considering only that filed by the wife), the court must say that the way the move was effected reasonably gives rise to a perception that it was pre-emptive, premature and, some would say, cavalier.  It took no account of the children’s father’s concerns and no account of the ramifications on his time with the children.

19. On balance, I am not satisfied that the orders sought by the mother should be made.  I do propose to restrain her from moving the children's residence from the Melbourne metropolitan area, until further order.  During a school holiday period when the children are with her pursuant to the existing orders, she can take them to the Victorian Coast or, indeed, anywhere else.  But they should be returned during the balance of this school term and in the first term next year.

20. As you may be aware, Cronin J is the case management judge.  I am advised that it has been determined that all applications for priority are to be considered by Cronin J, initially in chambers, on the papers. If considered necessary, his Honour will arrange a telephone mention. I cannot make an order for priority although in my view the circumstances would justify it.

21. I am further advised that the old requirement for an application to file a dot point summary of grounds been dispensed with.  However, I will give leave to file a document in dot point form setting out the reasons priority is sought.  If the parties join in that application, it would be in the interests of the children.  Such a document may assist Cronin J.

1. I will do my best to ensure that these brief reasons for judgment are transcribed and provided prior to the listing before his Honour and confirm in them my view that the matter needs some priority.

2. I do not propose to make any interim order changing the children's residence with the wife.  The evidence does not support the making of such an order, so long as the children are, during the school terms, remaining in the Melbourne metropolitan area.

I certify that the preceding 39 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

26 November 2007