W and W - [2003] FMCAfam 533

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & W

[2003] FMCAfam 533

FAMILY LAW – RELOCATION – Interim application – wife and children moved to V from Q without consent of husband – whether wife should be ordered to return children to Q and previous school pending final hearing.

Family Law Act 1975, ss.60B, 65E, 68F

Cowling & Cowling (1998) FLC 92-801

Applicant:

J K W

Respondent:

T J W

File No:

DGM 2105 of 2003

Delivered on:

3 November 2003

Delivered at:

Dandenong

Hearing Date:

3 November 2003

Judgment of:

Phipps FM

REPRESENTATION

Counsel for the Applicant:

Mr Hoult

Solicitors for the Applicant:

Jonathon Kemp & Associates

Counsel for the Respondent:

Mr T.J. Puckey

Solicitors for the Respondent:

James Noble Family Law

ORDERS

THAT the children of the marriage E T W born 21 December 1995, J T W born 22 August 1997 and J B W born 25 January 2000 reside with the Wife.
THAT the Wife return the children to B and the children be re-enrolled in the W Primary School on or before 24 November 2003.
THAT until further order the Husband have contact with the children each alternate weekend from 6.00pm Friday until 6.00pm Sunday commencing 28 November 2003 and otherwise such further contact as agreed between the parties.
THAT the further hearing of this matter be transferred to the
B Registry of this Court.

AND THE COURT NOTES:

THAT pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

DGM 2105 of 2003

J K W

Applicant

and

T J W

Respondent

REASONS FOR JUDGMENT

This application concerns three children, A T W born 21 December 1995, J T W born 22 August 1997 and J B W born on 25 January 2000. It is an interim application which on the face of the papers is a contested interim residency application, but in fact is an issue about where the children should reside in the interim. It has been argued in the course of the duty list.
The brief background is that the parties commenced living together in 1994. They were married on 25 August 1998. They separated in November 2001. There was a brief reconciliation in June or July of this year, or the husband puts it as between a date in May and July this year, a period of it seems about eight weeks.
What has given rise to the application is that in September of this year the wife moved with the children to M. The material before the court is the wife's application filed on 18 September 2003 with an information sheet. She swore an affidavit on 18 September 2003 and has sworn a subsequent affidavit in October. The husband has also sworn two affidavits. Their respective families and I think at least one friend on both sides have sworn affidavits.
Prior to December 2001 there had been previous separations between the parties. They had resided in B where the husband had a motor mechanics business which he had sold in or about the middle of this year. He now works as a freelance motor mechanic. The wife's family are quite an extensive family. Her parents, brothers and sisters reside in V relatively close by to where she is now in H P. The husband's parents live quite some distance away from B, D, which, it is said, is about a 12 hour drive. He does have friends and family in B.
What the affidavit material shows is that there had been a volatile relationship between the parties. There are allegations of violence by each against the other. This is an interim hearing so of course those matters cannot be decided on an interim hearing. There had been discussions between the parties about moving to M and it would seem that these discussions had been when the parties were together, but more relevantly, when they were separated. The wife had been asking the husband for his agreement that she move to M with the children and the husband had perhaps even at times expressed his consent to that.
But what is relevant to this application is quite clear. It is clear on the wife's original affidavit sworn on 17 September 2003, that when she was pressing him for a response to her desire to move with the children to M in September of this year he did not agree. In fact when she specifically asked him on 14 September he would not agree. She says that she contacted him at 6.30 pm. He said he had made his decision and he said, "You are not going to M." She says she was despondent about that. She telephoned her parents. Her mother came to B. She had a long conversation, she offered her support, and almost straightaway she moved to M.
It seems that some time between 14 September and 18 September she arrived in M. The proceedings, as I said, were issued on 18 September. In B the school-age children were attending school and having extensive contact with their father, certainly every alternate weekend and on other occasions. That extensive contact had been on going since the separation. In previous periods when the parties had been separated contact with the children who were then born had been maintained by the husband.
The application has to be decided in terms of the relevant provisions of the Family Law Act and the principles laid down by the Full Court of the Family Court in dealing with interim applications. Section 60B of the Family Law Act 1975 sets out the objects of the act, which includes that the children are entitled to contact with parents. Section 65E says that the best interests of the children are the paramount consideration and section 68F sets out various matters which must be taken into account in determining what is in the best interests of the children.
So far as interim residence applications or interim applications in relation to children such as this one are concerned, the principles are set out in Cowling v Cowling (1998) FLC 92-801, which refers to earlier decisions of the court. There it is said that the court cannot decide disputed questions of fact on an interim hearing. The court refers to the sections of the Family Law Act, which I have just set out, and then sets out a number of criteria for the determination of interim proceedings.
The first point is that the court must regard the best interests of the children as the paramount consideration. Second, given the mode by which interlocutory proceedings are conducted, those interests will normally best be met by ensuring stability in the life of the children pending a full hearing of all relevant issues. Accordingly, as a general rule, any interlocutory order made should promote that stability. Third, where the evidence clearly establishes that at the date of the hearing the children are living in an environment in which they are well-settled, their stability will usually be promoted by the making of an order which provides for the continuation of that arrangement until the hearing for final orders, unless there are strong or overriding indications relevant to the children's welfare to the contrary.
Such indications would include, but are not limited to, convincing proof that the children's welfare would be really endangered by remaining in that environment. Fourth, the court is entitled to place such weight upon the importance of retaining the child's current living arrangements as it sees fit in all the circumstances, and then it sets out some matters to be looked at.
The relevant facts I think to this application are that following. The separation in July of this year, that is, following a temporary reconciliation of some eight weeks or so in July of this year. The husband then moved in with some friends but he continued his contact with the children. Discussions took place between the husband and wife about the wife moving with the children to M, the wife ultimately left.
Mr Puckey who has appeared for the husband has taken me through what happened procedurally. The wife left without informing the husband and immediately upon arriving in M she issued an application. The husband was intending to issue his own proceedings in B by way of recovery order and interim residence order. He could not issue his own proceedings because the wife had already issued in M. The wife’s application when issued on 18 September 2003 was given a return date of today, 3 November 2003. Therefore the husband was in all the circumstances caught up with that return date.
I can see that it was not feasible for him to attempt to bring on a hearing earlier than today here at Dandenong given the difficulties of distance. He has attempted to deal with the situation as soon as he could.
The wife moved to M and moved in with her parents with the children. She has now just secured independent accommodation. The husband has also secured independent accommodation in B, so that so far as the physical circumstances for the children are concerned, each has satisfactory accommodation for them. The children have been enrolled in a school here in V nearby to where they live. As I said earlier, the wife sets out in her affidavit that she has extensive family support in M, that the husband has family support in B, perhaps not as extensive.
When I look in terms of the Cowling v Cowling principles and what is summarised as the status quo, the criteria which the Full Court refers to, the conclusion I come to is that the stable environment which the children had was in B. They have been in M for six weeks, but they have been moved into a new school. They are not settled into their own accommodation here in M. They have been living with their grandparents. Each party in their affidavits says that the children have expressed a desire to be with the parent they are speaking to and to either live in M or to live in B, depending on who they are talking to. That may well be true given the ages of these children. They are quite likely to want to please the parent to whom they are talking and nothing can be drawn from that. Of course nothing can be concluded from that in the interim.
B was the children's place of residence. That was where the school-age children attended school. I do note that the wife in her affidavit says that when she had been having discussions with the husband about moving to M her intention was that it would be over the Christmas holidays and her decision to move was quite sudden. She does annex to her affidavit a brief note from a doctor she saw up in B who she attended on 16 September 2003. She was, she says, very upset by the husband then telling her that he was not going to agree to her move to M.
But there is no evidence the mother has any such emotional problems or psychological problems that her capacity to care for the children would be hampered if she was to return to B. There is no evidence that she has been attending on any medical practitioners because of emotional issues or psychological issues since she came to M. I think applying the Cowling principles that the status quo, the settled environment for the children, is that they reside in B. The mother obviously wishes to pursue a relocation application. That, I consider, should be pursued from the settled position for the children and be dealt with as a final hearing in accordance with the principles that apply to relocation hearings.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: