Summers & Shaw - [2011] FamCA 889

FAMILY COURT OF AUSTRALIA

SUMMERS & SHAW

[2011] FamCA 889

FAMILY LAW – CHILDREN – interim order seeking return of child refused
FAMILY LAW – PROCEDURAL – application of the protocol for division of work between the Family Court of Australia and the Federal Magistrates Court

APPLICANT:

Mr Summers

RESPONDENT:

Mr Shaw

FILE NUMBER:

CSC

107

2009

DATE DELIVERED:

16 November 2011

PLACE DELIVERED:

C Town

PLACE HEARD:

C Town

JUDGMENT OF:

Watts J

HEARING DATE:

16 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Wilson

SOLICITOR FOR THE APPLICANT:

Miller Harris

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

Leave be granted to the mother to rely upon her response and an affidavit filed today in court on her undertaking that she will pay the relevant filing fee.
Leave be granted to the father to amend his Application for interim orders to seek an order that B be returned by the mother to C Town in lieu of order 4 which was sought in his Application in a Case filed 4 November 2011.
The father’s interim application that the child be returned to C Town by the mother from Melbourne be dismissed.
Pursuant to s 33B(1) and (2)(b) Family Law Act, this matter be transferred to the Federal Magistrates Court.
Until further order, the child will live with his mother in D Town/E Town, Victoria, pursuant to the provisions of order 23 made 7 October 2009.

NOTATION:

The court has indicated that the parties should attempt to reach agreement about interim arrangements for the child spending time with his father, possibly with the assistance of Mr F.
The mother has indicated she will facilitate time between the child and his father.
I will attempt to liaise with the Federal Magistrates Court in order to set this matter for a return date that creates an opportunity for the parties to have any controversies in respect of interim matters dealt with and have procedural directions made in relation to the application for final orders that both parties seek.

IT IS NOTED that publication of this judgment under the pseudonym Summers & Shaw 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 C TOWN

FILE NUMBER: CSC 107 of 2009

Mr Summers

Applicant

And

Mr Shaw

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The father has filed an Application in a Case on 4 November 2011 in which he sought an order that the mother be restrained from removing or attempting to remove the child, the child B born in 2007 from the C Town area.
It is an agreed fact that the child is no longer in the C Town area and is living with his mother in Melbourne.
The father has been granted leave to amend his application today to seek an order that the child be returned by the mother to C Town.
The father supports his application by an affidavit filed on 4 November 2011 and an affidavit by Ms G, filed on 11 November 2011. The mother, with leave, has filed a response in court today together with an affidavit filed in court today.
The mother claims there is a final order which allows her to take the child to Melbourne. Order 23 of the final orders made by consent in the Federal Magistrates Court on 7 October 2009 is in the following terms:
The mother will provide the father with three months’ notice of her intended relocation to Melbourne, such relocation being in accordance with the order 12 of the orders made on 8 April 2009. Upon the mother’s relocation, the father’s parenting time as provided in these orders will resume upon the father relocating to Melbourne.
I note in passing that order 23 does not require written notice, nor is there any time by which that order ceases to operate.
Order 12 made on 8 April 2009 provides for notification of contact details and the like.
Counsel for the father submitted that, given there is a final order for equal shared parental responsibility, the mother should have obtained the father’s permission before relocating the child to Melbourne.
As I have said in discussions with counsel for the father, order 23, being a specific order, to the extent of any inconsistency, is to be read as prevailing over the more general order granting equal shared parental responsibility of the child to both the mother and the father.
The mother is a health care practitioner and is registered and has completed two years specialist training. The training program is five years (minimum) in length. She has completed her available training time at C Town Hospital. Her evidence is that at all times since 7 October 2009 she has intended to relocate to Melbourne. She was waiting for a training position in a Melbourne hospital to become available. She says in her evidence that she and the father have had numerous discussions between the time when the orders were made and the current time about her move to Melbourne and that the father had not at any time suggested to her that he would oppose her relocation to Melbourne with the child.
The mother says the most recent of those discussions took place in August this year. The mother’s assertions are made in the context of this application by the father listed at short notice and the mother’s response and affidavit being recently served on the father. The father has not had an opportunity to respond to that assertion.
The mother’s position is that she has been lucky, within a two year period, to be able to secure a training position at a hospital in the Melbourne area.
On 14 September 2011, the mother sent an email to the father to let him know that she had applied for a job in Melbourne and she had been given, in the course of that job application, a possible start date that was mid October 2011. She told him in that email she would keep him informed about that outcome. The father did not respond or react in any way to that email, he says because of other things the mother said to him between 14 September and 28 September. On 28 September 2011, the mother sent a further email to the father indicating that she had been offered the job, it was going to start on 21 November and she was going to Melbourne to find a house and organise herself down there.
The father wrote back indicating that he considered that he was entitled to three months’ notice, and the mother indicated that, in her view, the notice provisions in the orders were no longer applicable, given that the father had made it abundantly clear to her, and has confirmed to me today, that he did not intend to relocate to Melbourne on any permanent basis.
The father, on 28 September 2011, sent an email which is slightly ambiguous, but I accept that he meant to say that, in his view, any notice the mother was required to give under the orders was, in his view, only given on 28 September 2011. As is clear from what I have already said, that is a contentious proposition. The mother pointed in a responding email, that by 21 November he would have had two months and one weeks’ notice if the notice was said to have run from 14 September 2011.
I accept the mother’s interpretation in relation to the notice provision in order 23, namely, that its aim was not to allow the father time to seek an order challenging the relocation, but rather, to allow time for him to organise himself to get down and resettle in Melbourne. Once he made it plain to the mother that he no longer intended to do that, the notice provision became otiose.
The High Court in MRR & GR indicated that it is important to have regard to reality of the situation, and the reality of the situation is that the mother, relying upon her interpretation of order 23, and the initial lack of response from the father, took up the training position that she has been offered at the Victorian hospital and has given up her accommodation in C Town and resigned from her employment in C Town. She has reaccommodated herself and the child in the Melbourne area.
In those circumstances, putting aside any technical argument about whether or not notice needed to be given in circumstances where the father was not going to permanently relocate to Melbourne and whether or the notice has been three months or less than three months, I am faced with the reality of the situation today. The mother believed she was entitled to move to Melbourne and has done so, and certainly in the short term, I accept that it would be difficult for her to unscramble that egg.
There does not seem to be any major dispute that the mother has been the child’s primary carer. The normal pattern of care has been that the child has spent four nights a fortnight with his father. The mother says that one of the effects of her not immediately leaving C Town, was that the child has been able to develop a meaningful relationship with his father and has also matured sufficiently, in the mother’s view, to gain enough confidence to cope with the move.
B will be transitioning into preschool kindergarten in January 2012.
The father, in his material, raises issues in relation to the mother’s mental health. Nothing has been said to me about that in submissions by the father’s counsel, and it appears, in any event, that the father considered the mother well enough in May 2010 for her to resume her role as a primary carer of the child and do so on an unsupervised basis.
The father has indicated in his affidavit that he has repartnered and is living with Ms H. The mother says that she was unaware that the father had repartnered. She does not know how long the new relationship has existed. She does not know what role Ms H plays in the father’s life, and the mother says it is inconsistent with something the father said to her only in August. On the material that I have before me today, I am not able to say what arrangements would be in place in the father’s household if I made an order returning the child to his father in circumstances where the mother remained in Melbourne.
I should say, also, that I am dealing with this matter in the confines of an interim hearing. It is a hearing that has proceeded on the papers without any testing of the evidence. An affidavit by Ms H is said to have been prepared but not filed or served. The matter has been brought on in circumstances where no extraneous material has yet been subpoenaed.
For the reasons discussed, I do not think it is in the child’s best interests to make an order for his immediate return to C Town, and I accordingly dismiss the father’s application that I do so.
Having done that, there is clearly going to be a contested issue as to whether or not the child is eventually ordered back to C Town (including the preliminary Rice and Asplund issue); and if not, what the arrangements in the long term are going to be in respect of the child having a meaningful relationship with both his parents.
The mother has assured the court in her affidavit and again today, that she intends to be as facilitative as she can be in relation to the child spending face to face time with his father. I do not have any application before me today seeking orders for those interim arrangements, but I will attempt to create an event so that any application of that nature can be considered.
This matter was a matter which originally was heard in the Federal Magistrates Court in C Town. The father filed an application in the Federal Magistrates Court, C Town registry on 25 February 2009. A family report was ordered by the Federal Magistrates Court, and the matter was dealt with on a final basis by the Federal Magistrates Court when orders were made on 7 October 2009. I inquired at the beginning of the proceedings today why it was that this application was filed in the Family Court of Australia, given the protocol for the division of work between the Family Court of Australia and the Federal Magistrates Court.
I was told that it was filed in the Family Court of Australia as a matter of “expediency”. I am unsure as to whether that meant the father expected to get an earlier listing or expected an increased chance of a favourable outcome if the matter did not come before the Federal Magistrate who had made the final orders in 2009.
The protocol between the two courts is in the following terms:
Protocol for the division of work between the Family Court of Australia and the Federal Magistrates Court
The Chief Justice and the Chief Federal Magistrate have published this Protocol for the guidance of the legal profession and litigants, so as to enable matters to be directed properly to the court appropriate to hear them. The Protocol may on occasions give way to the imperatives of where a case can best be heard and is not intended to constrain the discretion of a judicial officer having regard to the applicable legislation and the facts and circumstances of the case before him or her.
If any one of the following criteria applies, then the application for final orders ordinarily should be filed and/or heard in the Family Court of Australia (“FCoA”), if judicial resources permit, otherwise the matter should be filed and/or heard in the Federal Magistrate Court (“FMC”).
1. International child abduction.
2. International relocation
3. Disputes as to whether a case should be heard in Australia.
4. Special medical procedures (of the type such as gender reassignment and sterilisation).
5. Contravention and related applications in parenting cases relating to orders which have been made in FCoA proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.
6. Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court.
7. Complex questions of jurisdiction or law.
8. If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.
Note: The FCoA has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.
Transfers
1. Either Court on its own motion or on application of a party can transfer a matter to the other Court.
2. There is no right of appeal from a decision as to transfer.
No regard was had for the protocol when this application was filed. Forum shopping of this nature should be discouraged. It was inappropriate for this application to be filed in the Family Court. The case, on its face, did not present issues that fell within the scope of matters dealt with by the Family Court of Australia according to the protocol.
In those circumstances, I think it is appropriate that I transfer the matter back to where it should have been filed in the first place, that is, to the Federal Magistrates Court, and I will make that order on my own motion.
Given that the provisions of order 23 made 7 October 2009 are now operative and the father does not intend to relocate to Melbourne, it follows, in the interim, a co-parenting arrangement is not possible. I indicated to the parties that they should attempt to reach an agreement about interim arrangements for the child to spend time with his father, possibly with the assistance of Mr F. The mother has indicated she will facilitate time between the child and his father.
I will attempt to liaise with the Federal Magistrates Court so that this matter is given a return date that creates an opportunity for the parties to have any controversies in respect of interim matters dealt with and to have procedural directions made in relation to the applications for final orders that both parties seek.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 16 November 2011.

Associate:

Date: 17.11.2011