Walker and Walker

[2008] FamCA 1032

FAMILY COURT OF AUSTRALIA

WALKER & WALKER [2008] FamCA 1032

FAMILY LAW – CHILDREN – RELOCATION – Wife and child to relocate to Gippsland – Consent of the Husband

Family Law Act 1975 (Cth)

APPLICANT: MS WALKER

RESPONDENT: MR WALKER

FILE NUMBER: MLC 7148 of 2007

DATE DELIVERED: 25 NOVEMBER 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 25 NOVEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED:

1. THAT all prior child and parenting orders concerning the child … born … September 2003 be discharged.

2. THAT the orders made by Judicial Registrar Ramsden on 11 October 2005, including the injunctive orders and the addition of the name of the child to the Airport Watch List be forthwith discharged.

3. THAT the husband and wife have equal shared parenting responsibility for the child.

4. THAT the child live with the wife.

5. THAT the wife and the child be forthwith permitted to relocate their residence from Melbourne to Gippsland in the State of Victoria.

6. THAT the child spend time with and communicate with her father at dates and times as may be agreed between the parties but to include appropriate school term and long summer holiday periods.

7. THAT if the husband elects to travel to Sweden for a period of up to four (4) weeks in June / July 2009 then the child is to accompany him for the purposes of such a holiday provided that he first provide to the wife written particulars of:

   (a)         his travel itinerary including dates of travel and airline flight details;

   (b)accommodation and contact telephone number particulars where the child can be reached at all times;

   (c)the wife be permitted to communicate with the child on each Wednesday and Saturday at a convenient time by telephone or other electronic means.

8. THAT the Australian and Swedish passport of the child be forthwith released to the wife she to be responsible at all times for their safe keeping and if the husband is to travel overseas with the child then the wife deliver up the appropriate passport at the commencement of such travel and the husband immediately return that passport to the wife upon the child’s return to Australia.

9. THAT otherwise the husband be permitted to travel overseas with the child at any other time provided he obtains the prior written consent of the wife and the release of the child’s passport for such travel purpose.

10. THAT the wife forthwith serve a sealed copy of this order upon the Australian Federal Police advising them of the discharge of any existing Airport Watch List order for and involving the child.

11. THAT otherwise the Form 1 application filed 13 October 2008 and the application in a case filed by the wife on that same date be discharged.

12. THAT the court forward a sealed copy of these orders to the husband at his Notice of Address for Service.

13. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS NOTED:

A.THAT the court was satisfied as to the service of appropriate documents upon the husband and his knowledge of the proceedings being listed in court this day.

B.THAT there are no current intervention or other court orders outstanding as between these parties.

C.THAT the separate files commenced in 2005 and 2007 be consolidated and be retained together.

D.THAT the letters written by the husband to the court and to the wife consenting to the wife’s relocation to Gippsland with the child be marked as an exhibit and be retained upon the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7148 of 2007

MS WALKER

Applicant

And

MR WALKEr

Respondent

REASONS FOR JUDGMENT

1. The matter of Walker is before me on the application of the wife.  The earlier court history of these parties is contained in MLF 2723 of 2005 and I have had that file delivered to court.  The current proceedings are in file MLC 7148 of 2007 and the application for final amended orders and the current application in a case, both filed by the wife on 13 October 2008, are contained within this current file.

2. This matter was first before me in December of 2005 and I delivered a lengthy judgment pursuant to the provisions of the Hague Convention, whereby the wife was required to return the child of the marriage, born in March 2003, to England.  That she did and subsequently she and her daughter were permitted to return to Australia and currently they reside in Melbourne.

3. The husband works for the Australian Public Service and is based in Canberra.  His address for service is notified by him in a letter to the court as being ….  In that letter addressed to the Family Court and cross-referenced to this particular matter, the husband advised that he is unable to attend at court this day for the hearing and advised the court that his former wife has the consent that she now requires to relocate the home of herself and her daughter to Gippsland.

4. Annexed to the husband's letter to the court was his letter to his former wife which reads as follows:

   "Hello, […],

   Please feel free to relocate to [Gippsland] with [the child].  I have no interest, time or energy for this matter to be played out in a court of law and am disappointed that we could not solve this between us.  Please note that [the child] repeatedly said that she does not want to move to [Gippsland] in our Skype conversation today and gave you the same reply when directly asked today.  However, I hope the move and your new job in [Gippsland] becomes all you want it to be and wish you the best of luck and success."

5. In support of her application before the court, the mother, who now prefers to be known under her maiden name, has set out the background to the marriage, the period of the marriage and her current circumstances.

6. Leaving aside the earlier history of this matter, the basis of the present application is that the wife has been offered a full‑time position in Gippsland on a substantial salary, plus superannuation and allowances.  She has an offer of three months' accommodation.  She has inspected schools, looked at real estate and has explored the town.  She believes there is a very real benefit to herself and to her daughter in living in Gippsland and relocating her life and having her daughter thereafter educated in that country area.

7. The basis of the request to move is more substantially identified in paragraphs 11-16 (inclusive) of her affidavit filed 13 October 2008.  Given the consent of the husband to the move, it will be granted and as it is founded on proper employment, appropriate accommodation and providing a better lifestyle for herself and her daughter, it is appropriate that the court approves the relocation to Gippsland. 

8. By way of background, there were previous orders of this court made on 11 October 2005 by Judicial Registrar Ramsden, whereby an airport watch list order was announced and further injunctive orders were made against the wife from removing or attempting to remove the child from Victoria.  Those orders of course were in the lead-up to the Hague Convention application and the orders that I have announced in December of 2005.  There were also further orders made for both the Australian and Swedish passports of the child to be held by the Melbourne Registry pending further order.

9. I propose to discharge all of the orders that place a restriction of movement upon the wife or more particularly upon her daughter.  I do so on the basis that the husband's parents live in Sweden and part of the application before me is to permit the child to accompany her father to Sweden for a three-week holiday in June-July 2009, subject to the provision of appropriate information and travel security. 

10. Given that order is in the interests of the husband, and the wife consents, I will make that order today to facilitate the parties not having to return to court.  For the purpose of that order or otherwise to permit the wife to enjoy a holiday out of Australia with the child, it is necessary for the Airport Watch List order to be wholly discharged.

11. In the application now before me, the wife seeks orders for the parents to share equal parental responsibility for the child and for the child to live with her and relocate to Gippsland.  It does seem appropriate and more particularly in the best interests of the child for orders to be made as comprehensively as practicable this day.  Again, the consent information provided by the husband is very specific and certainly supports the child living with her mother and thereafter, and by consent, enjoying periods of time with and a level of communication with him.

12. I therefore indicate that prior to making these orders, I have satisfied myself of the knowledge and position adopted by the husband that the wife's orders now requested are in the best interests of the child and that some level of finality can and should be brought to these proceedings in this court. 

13. For those very brief reasons delivered extempore, I will announce the orders as requested by the wife and otherwise as detailed in these reasons.  I will have the husband's consent to the order as provided for in his letter to the court and his earlier letter to the wife marked as Exhibit “1” to these orders and they are to be retained on the file.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: