Surrey and Bernard

[2007] FamCA 1431

FAMILY COURT OF AUSTRALIA

SURREY& BERNARD [2007] FamCA 1431

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Contested proceedings in Standard Track List with a major issue concerning the wife’s proposed relocation from Dandenong to [central Victoria] to live with her partner to whom she has borne a child – Two children of mature years wished to remain in Melbourne and attend the school at which they had established solid peer group relationships – Recommendation of Family Consultant that children remain in Melbourne and reside with father – Consent orders made

Family Law Act 1975 (Cth)

Johnson & Johnson (2000) 201 CLR 488 at 493;
PRL & KMB [2005] FamCA 242
H & W (1995) FLC 92-598
R & R (Children’s Wishes) (2002) FLC 93-108

APPLICANT: Ms Surrey

RESPONDENT: Mr Bernard

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 834 of 2003

DATE DELIVERED: 5 September 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 5 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McGowan

SOLICITOR FOR THE APPLICANT: Denise A Dwyer

COUNSEL FOR THE RESPONDENT: Mr Brewer

SOLICITOR FOR THE RESPONDENT: Meier Denison Guymer Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Eidelson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: CE Family Lawyers

Orders

1. That all previous parenting orders with respect to the Children of the marriage:

   R - born … January 1994

   B - born … April 1997

   C - born … May 1991 -

   be and are hereby discharged.

2. That the Children R and B live with the Husband.

3. That the parents share equally the parental responsibility for the Children.

4. That the Children R and B spend time with and communicate with the Wife as follows:

   (a)each alternate weekend from 7:00pm Friday until 7:00pm Sunday, commencing Friday, 7 September 2007;

   (b)each of the school term holidays from 12:00pm (noon) on the first Saturday of the school holidays until 12:00pm (noon) Saturday prior to the return to school;

   (c)for two weeks of the long summer vacation commencing 1 January of each year;

   (d)from 10:00am 23 December each year until 9:00pm 24 December of each year;

   (e)in the event that Mother's Day falls on a weekend when the Children are to be with the Husband, from 7:00pm on the Friday prior to Mother's Day until 7:00pm Mother's Day AND should Father's Day fall on a weekend when the Children would be spending time with the Wife that weekend period of the Children spending time with the Wife suspended;

   (f)by telephone each Wednesday between the hours of 8:00pm and 9:00pm with the Wife to make the call to the Husband's land line AND during periods of school holidays when the Children are spending time with the Wife the Husband communicate with the Children by telephone each Wednesday between the hours of 8:00pm and 9:00pm with the Husband to make the call to the Wife's land line and the Wife to provide the Husband with the relevant phone number;

   (g)      at such other times as might be agreed between the parties.

5. That for the purpose of changeover pursuant to Orders 4(a), (b), (c), (d) and (e) hereof changeover occur at the … Service Station on the Melbourne side of the West Gate Bridge on the outward bound carriageway, save for 23rd and 24th of December in the event that the Wife spends that time with the Children at the home of the maternal grandfather then outside the K-Mart store at ….

6. That the Husband and the Wife forthwith advise the other of their current residential address, land line telephone numbers, mobile phone numbers and any other electronic point of communication AND notify the other of any change thereto 7 days prior to such change.

7. That the Husband authorise the proper officer of any school or schools to which the Children R and B or either of them might attend from time to time to:

   (a)      provide to the Wife (at the Wife's expense - if any) -

   (i)       copies of school reports

   (ii)      copies of school photographs and relevant order forms

   (iii)copies of school newsletters, memoranda or other documents ordinarily provided to parents;

   (b)      authorise, invite and encourage the Wife to attend -

   (i)       parent teacher interviews

   (ii)      school dramatic events

   (iii)     school sporting events

   (iv)     school musical events

   (v)school cultural events and any other event ordinarily open to parents.

8. That the Husband and the Wife, when the Children or either of them are in their respective care and suffer a significant illness or accident, as soon as practicable notify the other of the identity of all the treating medical practitioners, health professionals and institutions with relevant contact details and where necessary authorise the other to confer directly with the said medical practitioner, health professional or institution on all questions relating to the health and welfare of the Children or either of them.

9. That the Husband facilitate the Children's (R and B's) attendance upon a Counsellor at G Facility or do such other Counsellor approved by the I.C.L. to assist the said Children or either of them with their transition to living with the Husband and spending time with the Wife.

10. That alternate weekend time for the Children R and B to spend time with the Wife be suspended during the periods of school term holidays and long summer vacation and that alternate weekend time commencing 29 February 2008 be suspended and the following weekend 7 March 2008 be a weekend for the said Children to spend time with the Wife in substitution.

11. That the Husband and the Wife by their servants and agents be and are hereby restrained by injunction as follows:

    (a)from abusing, insulting, belittling or otherwise denigrating the other or any member of the other's family or household to the Children or either of them, in the presence of the Children or either of them within the hearing of the Children or either of them or permitting, encouraging, abetting or in any way suffering any other person to do so;

    (b)changing the school or schools which the Children attend from time to time without the consent of the other.

12. That the Wife's Form 1 Application (as amended) filed 1 June 2007 and the Husband's Form 1A Response (as amended) filed 17 May 2007 be otherwise dismissed and removed from the list of cases awaiting final determination.

13. That the Wife's time spent period following school term holidays recommence the second weekend after the holidays conclude.

14. 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 the 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.

15. That the I.C.L. be discharged upon explaining the impact of these Orders to R and B.

AND THE COURT NOTES:

1. That the Wife in consenting to paragraph 2 of these Orders does so in the belief that the long-term relationship between the Children and herself will not unduly suffer and that otherwise the Order is in the Children's best interests.

2. That the Father will facilitate the attendance of the Children upon the Independent Children's Lawyer for the purpose of explaining the impact of these Orders to the Children.

3. That the Husband and the Wife be sensitive to the wishes of the Children R and B, as they might effect their attendance pursuant to Order 4(b) hereof.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 834 of 2003

MS SURREY  

Applicant

And

MR BERNARD  

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me in the Standard Track List of defended cases and comprises a welfare dispute between the applicant wife, Ms Surrey and the respondent husband, Mr Bernard.  The husband and the wife commenced their relationship on August 1986 and lived together from 1988. They married in January 1993. Following unhappy differences between them, the parties separated on 27 November 2002. Accordingly it was a total period of cohabitation encompassing some 13 or 14 years.

2. There were four children of their union, S who was born in March 1989 and is 18 years of age; C who was born in May 1991 and is 16 years of age; R who was born in January 1994 and is 13 years of age, and B who was born in April 1997.  He is 10 years of age. 

3. The wife first commenced proceedings in this court concerning the welfare of the four children on 31 March 2003. Since then there have been nine appearances in court which defines the bitter disputation between the parties and their inability to privately resolve the issues that were troubling them.

4. The husband and the wife have had the advantage of family reports delivered in August 2003, January 2004, September 2006 and finally on 20 June 2007.  Each of those reports were prepared by Ms L.  Accordingly, the parties have had the benefit of a family consultant familiar with all issues when dealing with the problems between them.

5. Since the separation the husband has formed a partnership with a Ms W.  Albeit they live in different homes, they share their lives.  The wife too has formed a partnership with a Mr H.  As a result of their union, they have a child E who was born in May 2007.  Mr H lives in central Victoria and he first met the wife on 1 June 2005.  Their relationship continues and appears to me to be solid and durable one. 

6. It is the proposal of the wife that she will relocate to live with Mr H in central Victoria.  The problem that underscores the proceedings before me concerned the children R and B. Those two children live happily with the mother in Dandenong, but with her proposed move to central Victoria, the question became whether or not R and B would relocate with her and recommence a new school in that area, or live with their father and continue at the school they have attended for some time and where they have established solid peer group relationships?  I have somewhat simplistically detailed the central thrust of the problem and that is not meant in any way to suggest that I am not aware of the other major issues between the parties, and particularly those concerning their respective relationships with S and C. 

7. At the commencement of the proceedings on 4 September 2007, Mr McGowan announced his appearance for the wife, Mr Brewer for the husband and Mr Eidelson for the Independent Children's Lawyer.  Mr McGowan sought time to further confer with the wife, having accepted the brief this day.  There was no problem with that as far as I was concerned and no objection was taken by either Mr Brewer or Mr Eidelson.

8. However, I did have the advantage of reading the Case Outline Document prepared by the Independent Children's Lawyer, which led me to reading the various affidavits relied upon by the parties.  In particular I read what I regard as the very helpful report of Ms L dated 20 June 2007.  I thought it was an informative report in that, being the Family Consultant seized with the matter for several years, she was able to address the various problems and summarise them for the court.  In the result, she made quite explicit recommendations.

9. I had the opportunity of directly addressing the parties yesterday as I could, with some degree of prescience foresee that they were about to embark upon a difficult piece of litigation that really had an inevitable result in the light of the recommendation of Ms L, who had clearly addressed the children's wishes.  R and B are, as I said, 13 and 10 years of age respectively.  Children of that age subject, to maturity and a cognitive understanding of the issues involved, have a voice in court.  Authority over decades in this court has underpinned that proposition in law.  See, for example, H & W (1995) FLC 92-598; R & R (Children’s Wishes) (2002) FLC 93-108.

10. I addressed the parties as to the principles and objects of the Family Law Act 1975 (Cth) (section 60B) and emphasised that this was not a battle between them and it was not a contest in which there was a victor and a vanquished. It was a case concerning the best interests of both R and B which would be determined on the matters set out in section 60CC of the Act.

11. I addressed the parties on these matters and expressed a preliminary view, making it clear that I did so under the umbrella of Johnson & Johnson (2000) 201 CLR 488 at 493. The parties then adjourned to discuss the issues and for Mr McGowan to obtain detailed instructions from his client. I have no doubt they laboured long and hard all day yesterday in their negotiations and expressed good faith in so doing. I was informed by Mr McGowan this afternoon that, as of last evening, the matter was not settled. The wife however had further reflection overnight upon the issues and has consented to the orders which now are before me, which I mark Exhibit “A”.

12. I stress that each of the parties should speak positively to the children of the other party when in their care.  In a case that I heard some time ago involving parents that were quite unable to communicate with each other I had this to say:

    “413.There is an obligation on the part of each parent to foster the image of an absent parent.  That within itself requires discipline together with an ability to sublimate one's own feeling of pain, hurt or anger to benefit the best interests of their child.  I am not looking for the actions of the perfect parent in a utopian world, but one who recognises the importance of such qualities and strives to achieve that desired end. 

    414.That may mean, for example, an aggrieved parent seeking greater understanding by recourse to professional assistance.  To wallow in the mire of disillusionment, anger and bitterness can only, certainly by example alone, influence a child in a variety of negative ways against the absent parent.  The effect is dramatically compounded by the spoken word of negativity, passive alienation and subversive manipulation.”

    [PRL & KMB [2005] FamCA 242]

13. The wife lives at Dandenong.  The children live with her.  They have attended school in the area at which they have established solid and firm peer group relationships.  They are progressing, as I understand it, quite satisfactorily.  The wife has formed a loving relationship with Mr H.  They have a child, E, and they desire to work into the future together as a partnership and raise their child.  That necessarily means the wife moving to central Victoria.  It is that fact alone that has militated this arrangement, and in some ways it must be recognised as a sacrifice and one of goodwill on the part of the wife with the best interests of the children held as the paramount consideration.  I want the husband to understand that, and particularly to enjoin the children to respect, to love and to cherish their absent mother.  This I expect him to do.  The orders in Exhibit “A” are quite complex.  They are to be obeyed.  I am sure they will. 

14. I make orders in terms of Exhibit “A”.  I direct solicitors for the applicant wife to engross the orders, and I note the removal of the proceedings from the Active Pending Cases List.

15. I will direct that a transcript of the submissions made this day be placed on the court file, that my short extempore remarks be transcript placed on the court file and be made available to the parties.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate

Date:  11 December 2007.