Talia and Talia
[2012] FMCAfam 567
•15 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TALIA & TALIA | [2012] FMCAfam 567 |
| FAMILY LAW – Interim parenting and property orders – child aged 7 – arrangements for care pending final hearing – nature of interim hearing – unilateral relocation of child from South Australia to Queensland – considerations relating to relocation – presumption of equal shared parental responsibility – section 60CC factors – best interests – divorce order granted between parties more than 12 months prior to proceedings – application to proceed out of time – matters relevant to exercise of discretion – hardship – injunction on disposal of property pending final hearing – matters to be considered. |
| Family Law Act 1975, ss.60B; 60CC; 61C; 61DA; 65DAA; 44(3); 44(4); 114(1); 114(3) |
| Brisbane Health South Regional Health Authority v Taylor (1996) 186 CLR 541 Whitford & Whitford (1979) FLC 90-612 Goode & Goode (2006) FLC 93-286 C & S [1998] FamCA 66 D and S V (2003) FLC 93-137 Godfrey v Saunders 208 FLR 287 Morgan & Miles (2007) FamCA 1230 Jacenko & Jacenko (1996) FLC 91-776 Hall, K A and Hall, J C (1979) FLC 09-679 Short & Short [2011] FamCAFC 150 G & T (2004) FLC 93-176 Waugh & Waugh (2000) FLC 93-052 U & U (2002) FLC 92-112 |
| Applicant: | MR TALIA |
| Respondent: | MS TALIA |
| File Number: | ADC 4059 of 2010 |
| Judgment of: | Brown FM |
| Hearing date: | 8 June 2012 |
| Date of Last Submission: | 8 June 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 15 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr McQuade |
| Solicitors for the Applicant: | Howe Martin & Associates |
| Counsel for the Respondent: | Ms Dixon |
| Solicitors for the Respondent: | A K Reeves & Associates |
ORDERS
The wife return the child X (hereinafter referred to as “the child”) born (omitted) 2005 to the metropolitan area of Adelaide no later than midday on 30 June 2012.
The husband is granted leave to proceed out of time with his application for property settlement pursuant to the provisions of section 44(3) of the Family Law Act 1975.
UNTIL FURTHER OR OTHER ORDER
In the event that the wife elects not to live in the metropolitan area of Adelaide pending final hearing, the child live with the husband and spend time with the wife during school holidays at times to be agreed between the parties or as otherwise determined by the parties with the child’s necessary travel expenses to be shared equally between the parties.
In the event that the wife elects to live in the metropolitan area of Adelaide, pending the final hearing of this matter the child live with the wife and spend time with the husband as follows:
(a)from 9:00am on 1 July 2012 until 9:00am on 8 July 2012;
(b)during school terms on alternate weekends from after school on Friday until 6:00pm the following Sunday commencing on 20 July 2012; and
(c)overnight during each school week commencing 18 July 2012 from after school on Wednesday until the recommencement of school the following Thursday; and
(d)for one half of the end of term 3 2012 school holiday, the half to be agreed between the parties and failing agreement to be the first half;
(e)at any other times as agreed between the parties.
In the event that Father’s Day falls on a weekend the child would not otherwise be in the care of the husband pursuant to these orders the husband is to spend time with the child on the weekend of Father’s Day in lieu of the preceding weekend.
The parties are to take all necessary steps to re-enrol the child in the school which he attended prior to his removal from Adelaide unless the parties agree otherwise and this agreement is formalised in writing.
In the event the mother elects not to live in the Adelaide metropolitan area pending final hearing she is to have liberal telephone communication with the child on no less than three occasions each week, the times to be agreed between the parties and failing agreement to be on Monday, Thursday and Saturday of each week at 7:00pm Australian Central time.
In the event the mother elects to live in the Adelaide metropolitan area pending final hearing of this matter the father is to have telephone communication with the child at 6:30pm on every Saturday and Tuesday when the child is not otherwise in his care.
The respondent wife is restrained and an injunction issues restraining her from dealing with disposing of or otherwise converting the proceeds of sale of the former matrimonial home at Property C.
IT IS FURTHER ORDERED
The matter is fixed for final hearing before Federal Magistrate Brown on 4, 5, 6 and 7 December 2012 at 10:00am NOTING 4 days allowed.
Pursuant to Section 26 of the Federal Magistrates Act the parties and their legal representatives do attend a conciliation conference with a Registrar of the Court on 4 October, 2012 at 9:15am.
The parties exchange all documents as specified in Regulation 24.03 of the Federal Magistrates Court Rules and exchange appraisals or valuations of all items of property in dispute between them both real and personal 28 days prior to the date scheduled for the conciliation conference.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 21 September 2012.
The Family Report to deal with the following matters:
(a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.
Further consideration of this matter is adjourned to 22 October 2012 at 9:30am for trial directions.
IT IS NOTED that publication of this judgment under the pseudonym Talia & Talia is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 4059 of 2010
| MR TALIA |
Applicant
And
| MS TALIA |
Respondent
REASONS FOR JUDGMENT
Introduction
When one parent wishes to move interstate with a child, far away from the other parent, it invariably causes heartache and controversy for all concerned. For that reason, it is generally better that parents themselves attempt to resolve the issue of a proposed relocation consensually or, if an adjudication of the issue is required, that it occur fairly, after all relevant evidence has been both obtained and thoroughly tested and each parent feels that he or she has been properly heard about the matter.
For these reasons, cases involving the apparent unilateral relocation of a child, which come before the court at short notice, against a background of urgency, where the child has recently left the locale where he or she has been previously well settled, pose particular difficulties for the court.
Very often the parent who has moved will assert that he or she had compelling reasons for having to move away urgently. The parent left behind will invariably feel bitter and disregarded and fearful that his or her on-going level of relationship with the child concerned will be permanently compromised by the distance created by the move.
From the court’s point of view, it may be difficult to ascertain where the truth of the matter lies, as the parties involved almost always have very different views about what has happened in the past, so far as care arrangements for the child affected by the move.
The nature of an interim hearing is not calculated to resolve these types of controversies, as the evidence available is usually limited and cannot be readily tested. It is the final hearing stage, invariably months after the interim hearing, which provides the proper forum for the resolution of these issues.
It is here that the dilemma arises. The parent left behind will assert that there are all manner of issues and controversies which can only be resolved at the final hearing stage, the chief of which is were do the best interests of the child concerned truly lie – where the child has lived up until this stage or the new place. Therefore to allow the relocation at the interim stage may pre-empt the need for a final hearing and be ultimately contrary to the best interests of the child concerned.
On the other hand, the parent who has moved will usually able to point to all manner of reasons why the child should remain where he or she now is. These will often centre on pragmatism – the child is happy and well settled in the new place or there is no where for the child to live in the location left behind.
However, invariably on a fundamental level, the issue will turn on the assertion made by the parent who has left with the child that he or she is the child’s main provider of care and, as a matter of personal preference, he or she wishes to live somewhere else and, as such, it is an unwarranted intrusion on that parent’s freedom of movement that the court should act to fetter this entitlement, either at the final or the interim hearing stage.
All these issues and many others arise in the present case, which falls to be determined at the interim stage.
Background
Mr Talia and Ms Talia are the parents of X born (omitted) 2005. Although Mr Talia and Ms Talia divorced on 7 December 2010, with the divorce order becoming final one month later, it is convenient to refer to them as “the husband” and “the wife” respectively in these reasons for judgement.
The relationship between the parties is a poor one, characterised by difficulties in communication and a lack of trust. This state of affairs has precipitated three serious issues of contention between the parties, which are difficult to resolve on an interim or provisional basis, pending a further and more detailed hearing.
Firstly there is the issue of X. At present X is living at an unspecified location in Queensland. The wife met a person (his name has not been provided) on the internet in 2011, they are now engaged to be married and Ms Talia wishes to start a new life with him and X in Queensland.
X remained living in suburban Adelaide, until the April school holiday of this year. He then went to Queensland with his mother, who has apparently since returned to Adelaide. At present X is being cared for by the wife’s fiancé and his sister, whilst she finalises her affairs in South Australia. X has apparently now been enrolled in a school in Queensland.
The husband’s position is that he understood from what the wife told him that X was going to Queensland for a holiday only, to which he had no objection. There does seem to have been some discussion between the parties regarding a possible permanent move of X to Queensland at some stage. The husband says he made it clear to the wife that he did not consent to such a move.
In all these circumstances, he vehemently objects to the child being relocated to Queensland permanently, as he has deposed that he has a close and loving relationship with X, which has been sustained, up to this point, by frequent periods of contact between the two. It is his position that the mother has deceived him about moving X to Queensland and has tricked him about the true intention of the holiday there.
The wife has a different view. She would characterise herself as X’s “primary carer” and the husband as a poor and generally disinterested parent. In this context, the wife asserts that she has historically made all the necessary day to day and long term decisions concerning X.
Ms Talia asserts further that X is very happy living in Queensland and has no wish to return to South Australia. She describes him as being “very comfortable” with her fiancé, referring to him as “Dad”.[1] Notwithstanding these assertions, Ms Talia concedes that X loves his father. As such, she is open to X spending regular period of school holiday time with Mr Talia and conversing regularly with him on Skype.
[1] See wife’ affidavit filed 1 June 2012 at paragraph 63
In these circumstances, she deposes as follows:
“It is in X’s interests to live with me as he always has and I be solely responsible for his day to day care welfare and development. It is in X best interests for his father to make himself available during school holidays and for X to have a regular arrangement to spend time with his father each school holiday...[2]
[2] Ibid at paragraph 71.
The husband, given the circumstances in which X went to Queensland in the first place and difficulties he says he has experienced in talking to X on the telephone since he arrived there,[3] doubts that the wife is committed to maintaining his relationship with X, if he continues to live in Queensland permanently.
[3] An order was made for the husband to have telephone communication with X following the first mention of the husband’s application on 21May 2012.
The parties married on (omitted) 2000. They finally separated in August 2009. During their relationship, the husband was a self employed (occupation omitted). From 2003 until the date of their separation the parties’ family home was located at Property C (“the Property C property”).
The Property C property was registered in the wife’s sole name. The husband asserts that this was done to protect it from the actions of potential creditors, in the event his business failed. The wife does not specifically deny the rationale for the registration of the property. She and X lived in the property following the parties’ separation.
The husband asserts that he made significant financial contributions towards the acquisition, preservation and conservation of the Property C property. He says that he personally undertook extensive renovations to the property and obtained work associates to do other work to it at significant discounts. He also says that he contributed his earnings to the property and to other joint family purposes. It is his position that his wage was higher than the wife’s wage.
There is no dispute between the parties that, following their separation, the husband lodged a caveat against the title of the Property C property to protect his alleged equitable interest in the property. The husband voluntarily withdrew this caveat in June 2011, so that the wife could borrow a sum of money to either repair her car or obtain a new one.
Thereafter a significant factual dispute arises between the parties. The husband asserts that the wife promised him that she would not sell the house until the parties “had done a property settlement”.[4] The wife asserts that the husband said to her that “he would never fight her for the house.”[5] She asserts that he has only raised the issue of the property because he is aggrieved at the prospect of her finding happiness for herself and a new life in Queensland.
[4] See husband’s affidavit filed 17 May 2012 at paragraph 23.
[5] See wife’s affidavit at paragraph 23
The husband commenced these proceedings on 17 May 2012. At his request they were given an urgent first hearing date, which was 21 May 2012. In his supporting affidavit the husband deposed that he believed the wife had placed the Property C property on the market and was in South Australia to execute the necessary documents to finalise the sale and remove her effects to Queensland.
If the wife receives the proceeds of sale of the Property C property, the husband asserts that this will be an inequitable outcome, so far as he is concerned, given what he would characterise as his extensive direct and indirect contributions to the property, which he asserts fall within the criteria stipulated by section 79(4) of the Family Law Act 1975.
In these circumstances, the husband’s application dealt not only with matters to do with X but also with the settlement of matrimonial property matters between him and the wife. In his application, the husband seeks that the proceeds of sale of the Property C property should be divided between the parties in proportions to be determined by the court.
Given that the parties are divorced and the divorce between the parties has been final for more than twelve months, the husband requires the leave of the court or the consent of the wife to be able to proceed with his application, as a consequence of the provisions of section 44(3) of the Family Law Act.
The wife is not inclined to give her consent to the application and opposes the court granting its leave. Accordingly, this is a further area of controversy between the parties.
Due to the shortness of notice of the husband’s application, the wife did not have time to formally respond to the husband’s application prior to 21 May 2012. She did however confirm that the Property C property had been sold and was due to settle on 8 June 2012. The sale price was $515,000.00.
It is the wife’s case that she has earmarked this sum in order to purchase a home for herself and X in Queensland. She asserts that she made overtures to the husband, after the parties separated, in September of 2009, to enter into settlement discussions but he rebuffed them.
It is also her position that, following separation, the husband retained items of matrimonial property of considerable value. These included his business; the premises from which the business was conducted; and a number of valuable car number plates.
In all these circumstances, she asserts that for her to retain the proceeds of sale of the Property C property is a fair outcome. She is critical of Mr Talia for not responding to her September 2009 overture, particularly in terms of his failure to supply her with the details of the value of items of property retained by him. In these circumstances, she opposes the husband being granted leave to proceed with his application for property settlement.
This issue poses a further dilemma for the court. Given the imminent settlement of the sale of the Property C property, the husband seeks an injunction restraining the wife from dealing with the proceeds. The wife opposes the granting of such an injunction and questions whether the court has jurisdiction to grant such an injunction, whilst the issue of leave to proceed remains outstanding.
The Australian legislature has seen fit to prescribe a period of twelve months, from the date on which a divorce order has taken effect, as the period in which proceedings for matrimonial property settlement should be brought. McHugh J has said that “a limitation provision is the general rule; an extension provision is the exception to it …”.[6]
[6] See Brisbane Health South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553
However, although Parliament has prescribed this twelve month limitation period, the court is also granted a discretion to extend time in appropriate circumstances. In Whitford & Whitford[7] the Full Court of the Family Court stipulated that this “… power should be exercised liberally in order to avoid hardship, but nevertheless in a manner which would not render nugatory the requirement that proceedings should be instituted within a year from the decree nisi.”
[7] See Whitford & Whitford (1979) FLC 90-612 at 78,146
Accordingly, this court is not in a position to overlook the legislatures intention that ordinarily, proceedings should be commenced within a year of the parties concerned becoming divorced. The chief rationale to this intention being that former parties to a marriage are entitled to a sense of finality in respect of issues arising from their previous marital relationships and that delay, of itself, has the potential to lead to injustice.
However, in order to temper any potential hardship, the legislature has also provided a discretion to the court to extend time. This discretion must be exercised judiciously and advisedly. In Whitford the Full Court determined that the manner in which this discretion is to be exercised must depend on the facts of the particular case. It is an idiosyncratic decision.
Relevant matters for consideration include the length of the delay; the reasons for the delay; any prejudice occasioned to the respondent by reason of the delay; the strengths, on the merits, of the applicant’s case; and the degree of the hardship, which would be suffered unless leave was granted. These are all matters relevant to the exercise of the discretion, but not necessarily the only ones.[8]
[8] Ibid at 78,146
The issue of leave to proceed is an issue which it is very often logistically pragmatic to determine at an interlocutory stage. However, once again, there may be evidentiary issues arising regarding whether this complex discretion can be exercised when it is difficult for the court to ascertain the factual basis of matters in dispute between the parties concerned.
In this case, as with previous arrangements for X’s care, there are many issues in dispute between the parties. The chief one being what is the extent of property potentially available to be divided between the parties and whether the husband is likely to suffer any hardship, if he is not granted to proceed out of time.
A related dispute arises as to the reason why Mr Talia did not institute proceedings sooner. He asserts that he suffered some form of mental breakdown following the parties’ separation. On the other hand, the wife asserts that he knowingly chose not to be involved in or to institute matrimonial property proceedings with her.
If the husband is not granted leave to proceed, pursuant to section 44(3), the wife is likely to argue that there is no matrimonial cause arising under the Family Law Act and so it is not open to the court to grant the husband an injunction restraining her from dealing with the proceeds of the Property C property, to which she is legally entitled, as its sole proprietor, pursuant to the provisions of section 114 of the Act.
It is these three issues – where X should live and other arrangements for his care pending final hearing; the issue of leave to proceed out of time; and whether the wife should be injuncted from dealing with the proceeds of sale from the Property C property – which arise for the court’s determination at this interim stage.
Needless to say, the proceedings have been rigorously contested and there seems no prospect of any consensual resolution of the various issues arising. As I said at the outset, this tangled skein of problems seems to arise because of the poor relationship between the parties and the deficits in their respective capacity to communicate with one another. This situation has created a mess, which the court must struggle to place in order. Necessarily, this cannot be done without upset to one or other (or quite possibly both) of the parties.
In terms of X, on a final basis, the husband seeks that the parties should have equal shared parental responsibility for the child. In the event the wife chooses to live outside of the metropolitan area of Adelaide, the husband seeks orders that would see the child living with him and spending regular periods of the school holidays with his mother. In the event that the wife chooses to live within the Adelaide metropolitan area, the husband seeks orders that the child live with each of his parents on a week about basis.
In the interim, the husband seeks the immediate return of the child to the Adelaide metropolitan area. In the event Ms Talia elects to live in Queensland, the husband seeks orders that X live with him. In the event that, pending trial, Ms Talia is able to live in Adelaide, Mr Talia again proposes a week about arrangement for the care of X. He has no specific proposals, in financial or logistic terms, as to how X and Ms Talia are to be housed in Adelaide, given that the Property C property has been sold, other than he would agree to some release of funds from the property for accommodation expenses.
In her response, the wife seeks orders, on both an interim and final basis, that she have sole responsibilities for X’s day to day care, welfare and development and the child live with her. Although the location is not indicated, it is self apparent that she proposes X live with her in Queensland.
On both an interim and final basis, she proposes that X spend time with his father at times to be agreed between the parties, during school holidays, in either South Australia or Queensland with any necessary costs of travel to be shared between the parties. She proposes that X communicate with his father, three times a week by telephone and by Skype on every Sunday evening.
The husband’s evidence on affidavit
The husband has filed two affidavits in these proceedings and a statement of his financial circumstances.
In his financial statement, Mr Talia describes himself as a manager/director of (omitted). He attributes an average weekly income to himself of $1,157, which equates to an annual salary of approximately $60,000. He has calculated his property as being worth $550,950 and his liabilities to amount to $470,000.
His major item of property is premises situated at Property W, which he values at $510,000. This property is subject to a mortgage of $385,000. The weekly mortgage payments are $830.
Mr Talia has deposed that (business omitted) is worth an estimated value of $27,350. Besides the business, he has deposed that he owns two motorcycles of modest value and some electronic and camera equipment worth $8,000. It is also his position that he has a significant credit card debt of $41,500.
In respect of the business, Mr Talia has provided a brief statement, which indicates that it has assets, including two motor vehicles, to a value of $92,350 but various creditors and a bank overdraft to the value of $65,000, leaving his estimated value of $27,350.
Accordingly, it is the underpinning of the husband’s case that his current asset position can in no way be said to approximate that which pertains to the wife, if she retains the entire proceeds of the Property C property, which he understands is subject to a modest mortgage. As such, in his submission, it would be grossly unfair to him if Ms Talia retains those proceeds.
Mr Talia asserts that he brought assets to the value of $60,000 into the parties’ marriage, which was significantly more than the property which the wife brought in. He concedes that both parties were in paid employment, during their marriage, but asserts that his earnings were significantly greater than the wife’s.
As previously indicated, it is his evidence that he significantly renovated the Property C property and improved its value. He concedes that Ms Talia was significantly involved in caring for X, during the marriage. However, it is his case that he made significant financial and non-financial contributions during the parties’ relationship, which was of significant length.
Mr Talia describes the circumstances surrounding the parties’ separation as being unhappy and traumatic for him. After the parties separated, his father became terminally ill, as a result of throat cancer. Mr Talia nursed his father. As a result of a combination of these factors, including business pressures, Mr Talia asserts that he suffered a nervous breakdown.
As a result of these various matters, Mr Talia has deposed as follows:
“I have not issued proceedings within the statutory time limit because I have not been in the right state of mind to give this matter appropriate attention resulting from circumstances in my life … I have also not had the funds to pursue this matter with any vigour.”[9]
[9] See husband’s affidavit filed 17 May 2012 at paragraph 11
At this stage, Mr Talia has not provided any independent or expert evidence to support his assertion that he suffered a complete mental collapse. He does however point to his lodgement of a caveat on the Property C property as providing evidence that he was not disinterested in the property nor of the view that he was not entitled to some portion of the equity contained in it.
The husband asserts that he was very involved in the upbringing of X, during the parties’ marriage, as he operated his business from home and so was able to spend regular periods of time with the child. It is also his case that, in the period after the parties separated, particularly leading up to X’s departure for Queensland, he spent regular and extended periods of time with the child.
He estimates this time as being in the vicinity of seventy percent of X’s time. In support of this contention, he has supplied details of his electronic diary, which supports this contention.[10] The wife refutes this assertion.
[10] See husband’s affidavit filed 6 June 2012 at paragraph 3.6
Mr Talia has criticisms of the wife. He asserts that she has issues to do with depression and drinks to excess. In these circumstances, he asserts that he and X’s maternal grandmother have provided more care for X than the wife. He further asserts that the wife has taken several overseas holidays recently and left X in his care.
As previously indicated, he refutes any suggestion that he is disinterested in X or, either actively or passively, has consented to the child moving permanently to Queensland. To the contrary, it is his position that the wife has refused to discuss her plans with him and has been deceitful about her intentions.
He is critical of Ms Talia for making arrangements for X to attend school in Queensland without consultation with him. It is his position that he knows nothing whatsoever of Ms Talia’s fiancé or his family in Queensland. In these circumstances, he is concerned that X is being left in the care of people about whom he knows nothing. He refutes any suggestion that he is an inappropriate role model for a child of X’s age.
The wife’s evidence on affidavit
The wife estimates her income at $325 per week. This is made up of a parenting pension and a modest amount of child support received from Mr Talia from X. On oath, she has confirmed the value of the Property C at $515,000, which is apparently subject to a mortgage of $45,000.
The wife owns two motor vehicles of modest value and has superannuation in an amount of $35,000. She does not have any other significant assets. I have not been advised how she has previously earned her income or what was the level of her remuneration in the past.
The wife deposes as to the importance to her of her new relationship in Queensland, where she wants to start a new life with her fiancé. I have not been advised as to his financial position but the wife deposes that one of the positives arising from her relocation will be that she will not have to seek paid employment and so will be more available to parent X.
The wife asserts that Mr Talia was not significantly involved in X’s care during the parties' marriage. She asserts that she was “solely responsible for X’s every need”.[11] It is also her position that the husband has only spent time “sporadically” with X in the period since the parties separated. Clearly, this is one of the major factual disputes, between the parties, arising in this matter.
[11] See wife’s affidavit filed 1 June 2012 at paragraph 49
Ms Talia concedes that she has taken a number of overseas trips, without X, in the period after the parties separated. It is her position that her mother cared for X during these periods. Again, this is a matter which is disputed by Mr Talia. He asserts that X stayed predominantly with him, a state of affairs which he asserts is confirmed by his electronic diary. This is another issue, which I am unable to resolve in the context of these interim proceedings.
The wife deposes as follows, in her answering affidavit:
“I am now in a relationship with a man from Queensland and in fact we have recently become engaged to be married. I met him in 2011 and we did meet over the internet initially but started meeting physically earlier this year. X met him and spoke to him often on skype and we are now living happily together as a family … During the last South Australian school holidays I did take X with me to Queensland for a holiday and we went to some of the fun parks and I also took the opportunity to look at some schools near where my fiancé lives. X and I looked at the school where my fiancé’s nephew attends who is the same age as X and X liked it and said that he would like to attend there as he and my fiancé’s nephews are the same age and get along well. As the school term had already started in Queensland the school said that X should start as soon as possible and that they had a place for him. I let X enjoy a holiday for a few more days and then enrolled him at the school as was X’s wish. X is doing really well at the school and is very happy. … I left X in the care of my fiancé and his sister and her children. X is so familiar with my fiancé that he has started referring to him as Dad and is very comfortable with my fiancé’s family. He was not left with strangers.”[12]
[12] See wife’s affidavit filed 1 June 2012 at paragraph 60-63
The import of this evidence seems to be that Ms Talia’s original plan was to visit Queensland for a holiday with X but she appears to have changed her mind whilst there. It does seem to be the case that she acknowledges raising the issue of a possible relocation of X with Mr Talia, but it is also apparent that he made it abundantly clear to her that he did not consent to such an arrangement. This follows because Ms Talia is critical of his behaviour, on this occasion, which she describes as threatening and abusive.
Overall, I am satisfied on Ms Talia’s own evidence that her decision to relocate X to Queensland was a unilateral one. In addition, the evidence indicates that Ms Talia can have been under no misapprehension that Mr Talia did not consent to X moving to live in Queensland permanently.
No formal parenting order had been made, in respect of X, prior to him going to live in Queensland. Accordingly, at this stage, pursuant to the provisions of section 61C of the Act, the husband and the wife hold jointly all parental responsibility for the child, which means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their child. As such, Ms Talia does not have the sole authority to determine where X is to live in future. Her authority in this regard is equal to that of Mr Talia, subject to any future determination of the court in respect of parental authority.
This is the fundamental underpinning of the legal issues in this case. The husband seeks the conferral of equal shared parental responsibility, on the parties, in respect of X. The wife seeks the conferral of this parental responsibility on her alone. This issue has not as yet been determined by the court, either at an interim or final stage.
If the court ultimately determines that the parties are to share parental authority for X, as the husband currently seeks, the parents to such an order are required to consult with one another about any major long-term issue, which arises in respect of their child. Thereafter, they are further required to make a genuine attempt to reach an agreement about such an issue.
Major long term issue is defined in the Family Law Act. It includes any change to a child’s living arrangement, which would make it significantly more difficult for the child to spend time with a parent. It is this complex legal matrix, which underlines the significance of any parent unilaterally moving a child far away from the other parent concerned, in the absence of a specific order authorising such a move or specific parental agreement to this effect.
Although I wish the wife well with her new relationship, I am concerned that this relationship is not particularly longstanding. As previously indicated, I have not received any formal evidence from the gentleman concerned. In addition, I note that X has been in Queensland for a matter of weeks.
In these circumstances, I am loathe to give to much weight to the wife’s assertion that X is much happier in Queensland than in South Australia and has a clear preference to remain there. For obvious reasons, I am concerned that such statements may be self serving of Ms Talia’s ultimate aims, rather than a true reflection of X’s best interests. However, once again, these are matters for the final hearing.
The wife relies on two letters, sent by her solicitor to Mr Talia on 1 September 2009 and 22 September 2009 respectively, as evidence of the fact that Mr Talia was disinterested in resolving property matters with her. The letters are in similar terms and request details of Mr Talia’s property holdings, particularly in respect of his business and superannuation.
The husband apparently consulted solicitors about this correspondence but did not follow through with the process of consultation and the lawyers concerned withdrew. The wife also asserts that she believed the husband’s business owned tools and equipment worth $120,000. She also asserts that Mr Talia owned “a number of historic number plates which were worth a lot of money”.[13]
[13] See wife’s affidavit filed 1 June 2012 at paragraph 16
In the context of the lack of response to her solicitors letters and given her view of the value of property in Mr Talia’s possession, the wife deposes that she “decided not to pursue an application to see if I was entitled to more than just the value of the house …”.[14]
[14] See wife’s affidavit at paragraph 21
I do not understand the underlying rationale to this statement, particularly given that the wife concedes that the husband filed a caveat on the property, after she borrowed a sum of $25,000 secured against it. She also concedes that Mr Talia was persuaded to withdraw the caveat, when she indicated to him that she needed further moneys to either obtain a new motor vehicle or repair her existing one.
It would seem to be clear that Ms Talia did not provide any formal notice, in terms of a letter from her solicitor to Mr Talia, to indicate to him that she proposed to sell the Property C property. The wife asserts that the husband withdrew the caveat on 10 June 2011.
Of itself, the lodgement of a caveat by Mr Talia, does indicate some level of belief, on his part, that he had some form of equitable interest in the property concerned. However, once again, the circumstances surrounding the filing of the caveat and its subsequent withdrawal are matters which cannot be fully elucidated in these proceedings.
It is essentially Ms Talia’s position that she did not conceal the sale of the Property C property from Mr Talia, as the property was advertised on the internet and came to his notice there. She asserts further that she did not think “there would be any problem with me selling the house because it was in my sole name and the husband had said previously he would not fight for [it] and it had been over twelve months since the divorce.”[15]
[15] See wife’s affidavit at paragraph 26
The husband has not specifically responded to the assertion that he informed the wife he would not fight over the Property C property with her. However, it is unclear to me, at this stage of proceedings, what is the relationship between the husband’s current view of the sale and his obvious disapproval, conveyed to the wife, in respect of X going to Queensland.
Ms Talia characterises the decision to purchase the Property C property as being a joint decision of the parties. She asserts that a deposit of $50,000 was made on the property from joint savings. She asserts that her wage was utilised to pay recurrent mortgage expenses. She refutes the husband’s various assertions regarding his renovations to the property.
Accordingly, there are significant disputes between the parties regarding the extent of their respective contributions to the Property C property but Ms Talia does concede that the husband made some direct financial contributions towards it. Significantly, she concedes that Mr Talia paid the parties’ day to day living expenses.
The wife asserts that the husband will inherit a significant sum of money from the estate of his late father. This is not an issue which is subject to any extensive affidavit evidence. Counsel for the husband asserts that the will in question is being challenged by other relatives concerned. Where the truth lies in respect of this issue is impossible for me to determine at the interim stage. In any event the issue is likely to be peripheral to any assessment of section 79(4) factors if leave to proceed is granted.
The legal principles applicable
The essential difference between an interim and final decision is that interim hearings do not determine long-term arrangements for the care of the child concerned, whereas final hearings do. However although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage.
In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act [see section 60CC].
What have been called the best interest considerations rest on two main 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 as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary consideration in how a court determines what is in the child's best interests by section 60CC(2).
Other criteria relating to how a court is directed to consider how the best interests of any children concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
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. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
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 has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should “spend” equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
In the case of Goode & Goode[16], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[16] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
Given the structure of Part VII of the Family Law Act, cases involving one parent wishing to move a major distance away from the other parent concerned raise significant issues for the court and the parties concerned. Such cases throw up competing principles, which are difficult to reconcile.
On the one hand, one of the purposes of the Family Law legislation is to provide former partners with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children, in the now changed circumstances following the end of the marital or de facto relationship between them. There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned chose not to live together. It has been said that relocation cases need careful analysis.[17]
[17] See C & S [1998] FamCA 66
Accordingly, it is usually considered preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocations may have potential serious ramifications for the children concerned, especially when those children are young, in terms of their ongoing parental relationships.
The consequence of any proposed move does not turn on the distance involved alone. In determining the consequences of such a move, what is likely to be highly relevant is the age of the child concerned.
For obvious reasons, the move of a baby or pre-schooler, in terms of the development of parental attachment, will be very different to those for a teenager, whose parental relationships are likely to be well established.
In addition, there may be financial considerations arising from the move. Wealthier families are able to cope more easily with issues of relocation because of their greater financial resources. Less financially equipped families may struggle to meet the fuel or other transport costs involved in relatively short moves.
In many circumstances, children are frequently able to maintain their relationships with significant people, including a parent, by less frequent periods of quality time spent in school holidays, which is supplemented by other forms of communication, such as telephone, webcam or letters.[18] As Kay J pointed out in Godfrey v Saunders[19] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[18] See D and S V (2003) FLC 93-137 at 78, 280
[19] See Godfrey v Saunders 208 FLR 287 at 298
It is a common occurrence, in contemporary Australia, for a parent to move voluntarily away, from a child or children concerned, after a relationship breakdown. In addition, children are often relocated away from one of their parents, as a result of a consensual decision made by the parents concerned. Often financial imperatives are involved.
These types of situation come about because of the high level of mobility in Australian society and the reality that many parents wish to pursue career and personal opportunities, in a different place to that in which they lived whilst in a relationship with the other of their child’s parents. High rates of divorce are also an incident of modern Australian life.
Although the shared parenting legislation has added emphasis to the principle that children benefit, in their emotional and social development, by having as extensive a relationship as possible with both their parents, there is no principle of law that the parents of children are required to live indefinitely close to one another, in order to ensure that such an optimal outcome is achieved. The recent legislative amendments have not changed this situation.
Pursuant to rights read into the Australian Constitution, Australians have a right to live how and where they choose. Australia is a free and democratic society, which prizes the freedoms of its citizens. Accordingly, the court cannot ignore the legitimate expectations of parties who come before it regarding these personal freedoms.
However, the best interests of any child concerned remain the paramount consideration in the outcome of every type of parenting case, including a relocation one. As one of the components of a child’s best interest is the right to have a meaningful relationship with both his or her parents, I must consider the adequacy of the arrangements proposed by the relocating parent for any child concerned to spend time with the other parent involved.
The provisions of the Family Law Amendment (Shared Parental Responsibilities) Act have added emphasis to the importance of a child maintaining a meaningful level of relationship with both of his or her parents.
However, they have not specifically prohibited the movement of a child away from one of his or her parents or placed some specific evidentiary onus upon the parent wishing to relocate. If the legislature had intended to prohibit such relocations, it would have specifically done so.
Rather, what the court is required to do is to weigh and balance the primary considerations and the additional considerations in respect of the parties’ competing proposals, to determine the best outcome for the child concerned.
In so doing, it cannot ignore a parent’s entitlement to freedom of movement. In my view, it is incumbent upon the court to consider these various principles at both the interim and final stage. I think this follows from the directions provided by the Full Court in Goode & Goode.
However, given the more limited evidence usually available at the interim stage, the court must exercise considerable caution, in respect of such relocation issues, when the evidence before it is necessarily provisional and untested.
Accordingly, the Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.[20]
[20] See C & S [1998] FamCA 66
Relocation has implications for the quality and intimacy of the parental relationship a child has with the absent parent. These concerns are particularly pressing in respect of young or immature children. In this particular case, I bear in mind what was said by Boland J in Morgan & Miles.[21] Her Honour confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“…It [is] highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases”.
[21] Morgan & Miles (2007) FamCA 1230
These considerations are relevant in the present case. These are interim and so abridged proceedings. What was the situation confronting Ms Talia in April of this year? Was it a situation of such emergency that the move of X to Queensland can be readily justified? What had been the pre-existing arrangements for his care? Did these arrangements include Mr Talia?
Fundamentally, at the interim stage, the court must be careful not to second guess the issue of relocation which, given its complexity, is an issue which requires careful consideration. It remains Mr Talia’s position that the presumption of equal shared parental responsibility should be applied at the final stage and the court then is legislatively mandated to give proper consideration to an equal time regime for X.
If the child remains in Queensland, the consideration of this issue at the final hearing stage may become otiose as it will be submitted that he is now well settled in Queensland and as such a regime is neither conducive to his best interests nor readily practicable to put into effect
Section 44(3) provides that where a divorce order has taken effect, proceedings for settlement of property shall not be instituted, except by leave of the court, after the expiration of twelve months. In this case, there is no dispute that the divorce order, between the parties took effect on 8 January 2011. Accordingly, the twelve month period ended on 8 January 2012.
The requirements for leave are set out in section 44(4) which provides that the court shall not grant leave unless it is satisfied that hardship would be caused to a party to the relevant marriage or a child if leave were not granted.
In Jacenko & Jacenko[22] Nygh, J. referred to the relevant principles applicable to an application pursuant to section 44(3) and said as follows:
[22] See Jacenko & Jacenko (1996) FLC 91-776 at page 75,644
“The applicant must establish three principal matters: first, a reasonable prima facie case for relief, had she instituted proceedings in time; secondly, that denial of the wife’s claim would cause her hardship; and thirdly, an adequate explanation as to her delay.
…
If those three elements are satisfied, the Court should further, in determining whether to exercise its discretion to grant relief, consider the question of prejudice which the respondent would suffer by reason of the delay in bringing the application.”
In Jacenko the court considered the matters to be considered in determining whether an applicant for leave to proceed out of time had or had not established a prima facie case for relief in respect of matrimonial property settlement orders. These considerations are relevant given the leave issue must most usually be determined as a preliminary matter, at an interlocutory stage, prior to a more detailed examination of all relevant evidence by the court. The court held as follows:
“… the general principles is that on the issue of the establishment of a prima facie case the Court proceeds on the basis that the evidence of the applicant, unless it is inherently unbelievable or contradictory, should be accepted, and the Court should therefore decide whether or not on that basis a prima facie case has been made out. If leave is granted, then it is for the Court conducting the ultimate hearing to determine whether the prima facie case can be established.”
In Hall and Hall[23] the Full Court of the Family Court reviewed a number of earlier cases which had addressed the issue of the required strength of the prima facie case in s44(3) applications. The Full Court said:
“These varying phrases may tend to suggest different shades of meaning whereas in reality they are directed to the same fundamental enquiry which basically is in the context whether on the applicant’s material he or she has a reasonable claim to be heard by the Court.”
[23] See Hall, K A and Hall, J C (1979) FLC 09-679
In Short & Short[24] the Full Court considered that, in the context of section 44(4), hardship involved more than the loss of a right to commence proceedings. It was what followed from the loss of that right, which was central. This was the basis of the test that an applicant must have a prima facie claim worth pursuing or a real probability of success.
[24] See Short & Short [2011] FamCAFC 150
In Short the Full Court also re-emphasised that the court’s power to grant an extension of time was a discretion, which had to be exercised judicially, bearing in mind all the relevant circumstances of the case concerned. In Short, the Full Court approved the following passage from Whitford:
“Section 44(4) inhibits the granting of leave unless the requisite case is made out, but it does not provide that leave must be granted if the Court is satisfied that hardship would be caused … Due weight must be given to the expressed legislation intendment that ordinarily, proceedings should be commenced within a year from a date of the decree nisi, and the general policy of the Act which appears from sec. 44(3) and sec. 81 that financial relationships between the spouses should, wherever possible be brought to finality within a reasonable time after the dissolution of the marriage. Hence, such matters as the length of the delay, the reasons for the delay and prejudice occasioned to the respondent by reason of the delay, and the strength on the merits of the applicant’s case, and the degree of the hardship which would be suffered unless leave were granted, are matters affecting the exercise of the discretion. These matters are not necessarily the only ones.”
The factual circumstances arising in Short were very different to the factual circumstances arising in this matter. The parties concerned married in 1982; separated in 2001; and divorced on 14 February 2004. Thereafter, the husband had remarried in October 2004 and later divorced his second wife in June 2008. Significantly, he had been bankrupt between April 2005 and April 2008.
The husband in Short filed an application seeking leave to bring property proceedings against his first wife in June 2009. It was found at both first instance and on appeal, that the delay in instituting proceedings occurred because the husband firstly did not want to receive any moneys from such proceedings, whilst he was bankrupt, as any such sum could be diverted to his creditors and secondly because he did not wish his second wife to make a claim on such a sum.
In all these circumstances, it was found that the husband had taken a “deliberate course of finalising any financial settlement with the wife to avoid his creditors and his second wife” and these were “significant matters that weigh against the exercise of discretion.”[25]
[25] See Short & Short (supra) at paragraph 89
For obvious reasons, the conduct of the parties in a section 44(3) application is relevant to the exercise of the discretion to extend time. The normal rule is that property proceedings be brought within twelve months. An extension of time is exceptional. It is essential an equitable decision.
Also highly relevant is any prejudice, which may be caused to the respondent to such an application, if leave is granted. This in turn is very often related to the length of the delay in question. All these various factors must be balanced against one another to achieve a proper outcome.
The court’s power to grant an injunction is contained in section 114 of the Family Law Act. Section 114(1) provides as follows:
“In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
…
(e) an injunction in relation to the property of a party to the marriage; or …”
The definition of matrimonial cause arising from subsection 4(1) is as follows:
“proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship …;”
In this case, it would seem clear that the husband’s application for an injunction to restrain the wife from dealing with the proceeds of sale of the Property C property is one which arises out of the marital relationship between the parties, notwithstanding the fact that the marriage between the parties has now been dissolved.
The property in question was purchased during the parties' marriage and was undeniably their home during it. Although issues arise regarding the extent of the parties’ contributions towards the property, it is not said by either the husband or the wife that the husband did not make some form of contribution towards the property.
In addition, section 114(3) grants the court authority to make an interlocutory injunction, in cases to which section 114(1) does not apply, in any case in which it appears to the court to be just or convenient to do so.
In G & T[26] O’Reilly J summarised the principles relevant to the granting of such an injunction as follows:
“The purpose of interlocutory restraining orders in a case such as this is to preserve the status quo until the trial. In order to exercise its discretion the court is required to find that there is a serious issue to be tried and that the balance of convenience supports the making of an order…
Plainly, it is also a requirement that the restraints sought be reasonably necessary in the sense that if the restraining orders sought are not made there would be a real risk of the defeat of the applicant’s claimed interest.”
[26] G & T (2004) FLC 93-176 at 78,989
Accordingly, before an interlocutory injunction is granted pursuant to the provisions of section 114(3) the court must be satisfied that there is a real risk that an application for property settlement will be negated if the injunction sought is not granted. It is not a sufficient basis for such an injunction that the applicant in question mistrusts the other party or feels anxious. A party is not entitled, as of right, to some form of security over any piece of property, which is subject to potential proceedings.[27]
Issues to do with X
[27] See Waugh & Waugh (2000) FLC 93-052
a) Section 60CC factors
The parties have each made criticisms of the other’s behaviour during their marriage. Each asserts that the other had issues to do with the over consumption of alcohol and each says that the other has suffered from depression. However, these matters are not the main focus of the case. In particular, both the husband and the wife acknowledge some past difficulties but say that the other has overstated them in order to advance his/her respective case.
There do seem to have been a number of unpleasant altercations between the parties, both at separation and more recently when the mother raised the issue of X moving to Queensland. However, once again, issues to do with family violence are not to the forefront of this difficult matter.
Accordingly this does not appear to be a case which centres on the need to protect X from suffering from the possible psychological and physical consequences of being exposed to neglect, abuse or family violence. This is important. Very often the relocating parent asserts he or she had no viable alternative other than to flee an abusive relationship. This is not the case here.
From Mr Talia’s point of view, the case centres on the benefits, which X is likely to derive from having a meaningful level of relationship with him. He fears that, if X remains living in Queensland and he remains living in Adelaide, X’s paternal relationship will be diminished, particularly if Ms Talia is not inclined to support and foster it.
Ms Talia categorises Mr Talia as being a somewhat lackadaisical and disinterested parent. However, she does concede that X loves his father and she supports regular school holiday time between the two, augmented by regular forms of electronic visitation. By necessary implication, this suggests that she concedes X has the potential to benefit from having a meaningful level of relationship with his father.
The central evidentiary issue arising in the care, in respect of X, is the extent of time which he has spent with his father following separation. In this regard, Mr Talia’s assertion that he has spent significant time with the child cannot be dismissed as being inherently unlikely. It remains an issue for final hearing. It is in this context that Ms Talia’s actions in moving X to Queensland must be examined.
In this case, as previously discussed, I am satisfied that Ms Talia’s decision to move X to Queensland was a unilateral one on her part. The decision also seems to have coalesced more definitely, once X arrived in Queensland, as originally the purpose of the visit there seems to have been for a holiday.
It is also clear that the reason for her wanting to move X to Queensland, is in order to advance her own personal plans. I do not dismiss her aspiration to marry and be happy in Queensland, but her plans have potential implications not only for her but also for X and Mr Talia.
X is just seven years of age. Clearly, he is likely to have sufficient maturity to be able to remember his father between holiday visits, interspersed between school terms of around ten weeks, as well as to be able to communicate effectively with him on the telephone or via computer link.
However, in my view, X is still a child of tender years and so incomplete development. Accordingly his relationship with his father is vulnerable to the pressures of distance. The move of X to Queensland must have some implications for the future quality of the child’s relationship with his father. What those implications are is unclear to me at this stage.
Ms Talia has said that she will contribute to X’s necessary travelling expenses, if he remains living in Queensland. However, she has not provided any concrete details as to how this would be done and what is the likely cost involved.
It is a common phenomenon, in disputes regarding interstate travel for a child of X’s age, for issues to arise about whether the child in question needs to be accompanied by an adult on any necessary flights and as to how such accompaniment is to be funded. Other related logistical issues also frequently arise.
In this case, the parties are not persons of obvious means. Their relationship appears fraught with all manner of communication difficulties. In all these circumstances, I am not in a position to accurately appraise how realistic are the wife’s proposals for X to spend time with his father, in the light of the two living interstate from one another.
One of the responsibilities incumbent in being a parent is the responsibility to support and encourage a relationship with the other parent concerned. Again, this is a difficult issue to appraise at the interim stage. However, it is clear that Ms Talia’s actions in moving X to Queensland were unilateral. In my view, this must at the very least, call into question her bona fides in respect of this particular consideration.
In addition, Ms Talia asserts that X has expressed a preference to remain living in Queensland with her, her fiancé and other relatives of her fiancé, whom X is said to regard as “family” and the fiancé as “dad”. In this regard, I note that X has been in Queensland for a few weeks and has known the fiancé only face to face since earlier in 2012.
At this stage, the evidence is uncertain regarding the nature of X’s relationship with Ms Talia’s fiancé and the other individuals concerned. The designation of the gentleman in question as “dad” is likely to be a sensitive one for Mr Talia, particularly in the context of X going to live in Queensland without any consultation with him or formal adjudication of the court.
Given the manner in which Ms Talia has chosen to broach this issue, in her affidavit material, I can well understand why he would be concerned that Ms Talia has no long term commitment to ensuring he remains a live presence in X’s life. But again, this is a matter which requires further examination at final hearing.
If the court determines, at the final stage, that the parties are to have equal shared parental responsibility for X, it is required to give earnest consideration to the child living in a shared parenting regime or, if this is ruled out, in a substantial and significant time regime. This is Mr Talia’s position. Neither outcome is likely to be viable, if X remains in Queensland.
I appreciate it may be regarded as inherently sexist that the court is seen to be giving consideration only to potential restraints on Ms Talia’s freedom of movement and future aspirations, when no examination has as yet been made of the possibility of Mr Talia moving in tandem with Ms Talia to Queensland.[28]
[28] See U & U (2002) FLC 92-112 at 89,081 per Gaudron J
Rather the matter proceeds only on the basis that the wife is either “permitted” to move or must return the child to Adelaide. Essentially no consideration has been given to Mr Talia committing to something which he may find unpalatable to achieve X’s greater good.
However, given the manner in which this case has come before the court, in my view, this is also an issue for the final hearing. At this stage, in my view, it is incumbent upon the court to put in place a regime which will enable a proper and exhaustive inquiry to be conducted into all these complicated and competing issues.
The fact remains that, in my view, there was no pressing state of emergency which compelled the mother to move X to Queensland. The move was motivated by her personal preferences and occurred after the husband made it clear he did not agree with the move. Thereafter, Ms Talia has attempted to present him with a fait accompli.
In my view, given the various controversies in the evidence, it would not be in X’s best interests for the issue of relocation to be determined prematurely or precipitately. The rationale of the legislative provisions concerning children is that their parents share duties and responsibilities in respect of their children. As such, the courts must be careful not to condone the unilateral actions of one parent or retrospectively ratify a piece of parental self help.
In my view, the difficult and complicated issues relating to the wife’s wish to live in another state with X, should be the subject of a proper and exhaustive hearing, in which all the necessary issues can be properly canvassed. The problem which potentially arises is that, if the wife and X remain living in Queensland prior to that hearing, it may significantly reduce the usefulness of that subsequent hearing.
In my view, a consideration of the various factors arising under section 60CC favour the return of X to Adelaide, pending this final hearing, which I will attempt to expedite as much as I can. For the reasons already provided, a final hearing is the appropriate forum to analyse the pros and cons of a relocation of X to Queensland, from the perspective of his best interests.
At this stage, proper consideration can also be given to the interests of the other parties – Ms Talia so far as her legitimate entitlement to pursue her aspirations in terms of marriage and other plans in Queensland – and the viability of Mr Talia changing his future plans, so that the wife’s aspirations may be achieved.
Given the troubled and muddled parenting relationship between the parties, I do not think it appropriate to apply the presumption of equal shared parental responsibility, at this interim stage. As such, I have not specifically considered the prospect of either an equal time or substantial and significant time arrangement. However, at this stage, I have reservations that neither such arrangements are likely to be in X’s best interests nor objectively practicable to put into effect.
The Queensland school holidays will commence on 22 June 2012. I will order that X be returned to Adelaide no later than midday on 30 June 2012. My authority only lies in respect of parenting arrangements. If Ms Talia does not wish to live in Adelaide pending the final hearing of this matter, I have no authority to compel her.
In the event that Ms Talia elects not to live in Adelaide, I will order that X live with his father and spend time with his mother during future school holidays. It is appropriate that it be for half of each school holiday and that the parties share the child’s necessary travel costs.
However, in the event that Ms Talia elects to live in Adelaide, pending the final hearing of this matter, given the concession made by Mr Talia that he regards her as X’s primary carer, it would seem appropriate that the child live more with his mother than his father.
However, I also appreciate that there will be significant logistical difficulties arising from Ms Talia’s point of view, as a result of the outcome of these interim proceedings. Essentially, I do not know firstly whether Ms Talia will return to live in Adelaide and secondly, if she does so, where she will live.
This latter factor is likely to have implications for arrangements by which X spends time with his father. The forced nature of this outcome is also likely to add to the heat in the parties’ already fractious relationship.
I do not dismiss Ms Talia’s likely logistical difficulties arising from what she will perceive to be her compulsory return to Adelaide. However, without wishing to appear trite, she does not seem to have given any great degree of thought to the obvious logistical issues pertaining to Mr Talia, arising from her move of X to Queensland.
At this stage, in the event that Ms Talia does elect to live in Adelaide, pending final hearing, I propose that the child spend from 9:00am on 1 July 2012 until 9:00am on 8 July 2012 with his father and thereafter, during school terms on alternate weekends from after school on Friday until 6:00pm the following Sunday commencing on 20 July 2012 and overnight during each school week commencing 18 July 2012 from after school on Wednesday until the recommencement of school the following Thursday. I will also make specific orders in respect of the end of term three school holidays and in respect of the Father’s Day weekend.
I have not been provided with any evidence regarding the school which X attended prior to his relocation to Queensland. I assume that he attended the same school for some time and it was reasonably convenient and accessible to both parties’ homes, in the period following their separation.
If this be the case, I would anticipate that X is likely to have many friends at the school in question and to be familiar with its teachers and premises. As such, it would be preferable that he return to this school for the second half of the 2012 school year.
Under the provisions of the Family Law Act educational arrangements for a child are categorised as major long term decisions. As such, when a parenting order is made sharing responsibility between parents, those parents are required to consult one another and attempt to reach a consensus about such an educational issue.
As I am unclear about what are the wife’s intentions in respect of the outcome of this matter, I will direct that X return to the school which he attended prior to leaving Adelaide, unless the parties agree otherwise. To my mind, such an outcome is the one most calculated to provide the maximum level of stability for X until the final applications of each of his parents can be disposed of.
Part of the rationale for directing X’s return to Adelaide is that there should be a “level playing field,” pending final hearing, so that one party is not advantaged over the other in respect of the issue of relocation by an incident of unauthorised self help.
A necessary corollary of that rationale is that the earliest possible date for hearing should be appointed, given that issues of freedom of movement are engaged. Notwithstanding the uncertainty about other issues arising between the parties, particularly in respect of the possible division of property, I will allocate 4, 5, 6 and 7 December 2012 as the dates for this final hearing, which is the earliest date I can provide.
Given the disparate views of the parties regarding many matters to do with X’s care, which include his individual preferences as to the outcome of these proceedings; the nature of his relationship with each of the parties; and how is paternal connection is likely to withstand the pressures of distance; it is appropriate that a family report be prepared to assist the court in its determination of the case.
Section 44(3)
I consider that, notwithstanding the provisional nature of the evidence available to me, Mr Talia has demonstrated a reasonable prima facie case that he is entitled to some part of the proceeds of sale of the Property C property. However, I concede that what his entitlement is, in dollar terms, is far from clear.
The wife accepts, as indeed she must, that the marriage between the parties was of significant length and during it significant items of property were acquired. She also accepts that Mr Talia made contributions as a wage earner and in other indirect ways. The underpinning of her case is that the items of property retained by Mr Talia, following the parties’ separation, adequately reflect his various contributions.
This is a highly contentious issue, so far as the parties are concerned. It essentially turns on the value of the husband’s business; the collectible number plates; and some other items of property. The husband’s position is that, when various liabilities are considered, these items of property have a modest value, when compared to the equity released from the sale of the Property C property.
At this stage, I do not consider that it is possible for the court to dismiss this contention, which I do not regard to be inherently unbelievable or contradictory. It is incontrovertible that he made appreciable contributions relative to section 79(4) during the marriage. As such, I accept that Mr Talia has established a prima facie case for relief, on the basis of the material currently available to me.
As such, in my view, it must follow as a matter of logic that he will suffer hardship if leave is not granted to him pursuant to section 44(3). In my view, given the length of the marriage between the parties and the issues arising between them regarding contribution, I consider that Mr Talia has a reasonable claim to be heard by the court.
Mr Talia has deposed that he was emotionally dislocated by the circumstances surrounding the end of the parties’ marriage and the death of his father. He asserts that he suffered some form of mental collapse as a result. He has not as yet provided any medical evidence to support his contention in this regard. However, his evidence in this regard does not seem to me to be inherently unbelievable.
Certainly, given the issue of the caveat, which was lodged against the title of the Property C property, I find it difficult to accept the wife’s assertion that Mr Talia was disinterested in the issue of securing a comprehensive property settlement with the wife, which included the Property C property or effectively renounced any interest in the property.
Given the length of the marriage between the parties, the period by which Mr Talia is out of time in respect of his application for property settlement orders cannot be regarded as an objectively lengthy one. In this context, in my view, I must examine the conduct of each of the parties to determine whether the discretion available to me should be exercised in Mr Talia’s favour.
Until recently, the wife was not able to sell the Property C property because of the husband’s caveat lodged against its title. This caveat was withdrawn as a result of an accommodation reached between the parties, so that Ms Talia could borrow moneys to purchase a motor vehicle. As previously discussed, the existence of this caveat provides prima facie evidence that Mr Talia was of the view that he had some form of equitable interest in the property.
It is equally axiomatic that Ms Talia was aware that Mr Talia had such an understanding of the situation. It is against this background that Ms Talia’s decision to place the property on the market for sale must be examined. She did not formally advise Mr Talia of her intention in this regard. Rather, the issue came to a head, after her relocation of X to Queensland, which in part at least, she hoped to fund from the sale of the Property C property.
In these circumstances, it appears fatuous for Ms Talia to rely on Mr Talia’s non-response to her letters of September 2009 to justify her conduct. In addition, I do not think that it can be said that Mr Talia has failed to institute these proceedings to secure any tactical advantage in subsequent proceedings. Accordingly, in the exercise of the discretion, I do not think that Ms Talia comes to the court with completely clean hands.
Balancing the prejudice arising to each of the parties, if leave is either granted or refused, I have come to the conclusion that it would be more prejudicial to the husband if leave is not granted. Accordingly, for those reasons I propose to grant the husband leave to proceed with his application for property settlement pursuant to the provisions of section 44(3) of the Family Law Act.
The injunction
The next procedural step, so far as the property issues are concerned, is to allocate a date for a financial mediation conference. I propose allocating 4 October, 2012 at 9:15am.
Given the circumstances surrounding the sale of the Property C property, I have come to the conclusion that it would be both just and convenient to restrain the wife from dealing with the proceeds of sale of the Property C property until such time as all the property issues between the parties have been resolved. Given the unilateral nature of some of her actions, since the parties separated, I consider that there is an appreciable risk that she may act in a way calculated to defeat the husband’s claim.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 15 June 2012
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