Waterhouse and Shelley

[2007] FamCA 541

FAMILY COURT OF AUSTRALIA

WATERHOUSE & SHELLEY [2007] FamCA 541

FAMILY LAW - CHILDREN – Orders made to bring an application up to trial readiness pursuant to Division 12A – Wife remarried with two children proposes to relocate to Western Australia – Husband who spends time with his 11 year old son opposes the application.

Evidence Act 1995 (Cth);
Family Law Act 1975 (as amended)

A v A [2004] FamCA 879
K v K [2006] FamCA 126
T v T [2006] FamCA 130
Paul v Paul (1979) FLC 97 13

APPLICANT: Mr Waterhouse

RESPONDENT: Ms Shelley

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 3380 of 2006

DATE DELIVERED: 27 April 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 27 April 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Colla

SOLICITOR FOR THE RESPONDENT: C E Family Lawyers

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Crabtree

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Donald S Lampe

Orders

1. That the hearing of the contested application proceed to finality as a Less Adversarial Trial case pursuant to Practice Direction No. 2 of 2006.

2. That pursuant to s 190(1) of the Evidence Act 1995 (Commonwealth) the provisions in s 190(1)(a), (b) and (c) are dispensed with to the extent required to permit the admission of all material placed before the Court as evidence, subject to the application of proper weight, and to conduct the procedure of the hearing as envisaged in the Practice Direction No. 2 of 2006 AND THAT in making this order I do so on the ground referred to in s 190(3)(b) of the Act, having taken into account the matters referred to in s 190(4) of the Act and also the aims of the Less Adversarial Trials procedure.

3. That each party during the hearing make full and frank disclosure of any fact which should be brought to the attention of the Court having regard to the best interests of L born on … December 1995.

4. That a Family Report be prepared by Mr S in these proceedings to address the following issues:

   4.1The needs and express wishes of the said child;

   4.2The capacity of each parent to identify, provide for and manage the practical and emotional needs of the said child;

   4.3The child’s primary attachments;

   4.4The child’s attachments with his step-siblings;

   4.5Each parent’s capacity to facilitate orderly and meaningful contact with the other parent;

   4.6All matters pertinent to the needs of the said child,

   AND THAT the said report be prepared for the trial of the proceedings to commence on 3 September 2007.

5. That the issues for the determination by the court include the following:

   5.1The residence placement of the said child;

   5.2The time the child should spend with the other parent, and

   5.3When and how this should occur.

6. That both the husband and the wife do file and serve their trial affidavits, their Form 13 Financial Statements and any affidavit or affidavits upon which they seek to rely not later than 15 August 2007 AND THAT each of them do file and serve their respect Case Outline Documents on or before 22 August 2007. 

7. That the said child spend time with the wife in Western Australia from 2 July 2007 until 13 July 2007, and in the event that the trial does not proceed on the due date, from 28 September 2007 to 5 October 2007 AND THAT the wife do bear the costs of travel necessary to comply with this order.

8. That the husband and the wife do attend privileged counselling arranged at the Family Court PROVIDED THAT the said counselling is not conducted by Mr S.

9. That the parties’ costs of this day be reserved.

10. That the ex tempore judgment delivered this day be transcribed, placed on the court file and made available to the parties.

(11) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3380  of 2006

Mr Waterhouse

Applicant

And

Ms Shelley

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter comes before me pursuant to Division 12A of the Family Law Act 1975 as amended, the parties having agreed to undertake what is now known as the Less Adversarial Trial procedures. I have been advantaged this day with Ms Colla appearing on behalf of the wife, the husband in person, and Mr Crabtree appearing for the Independent Children's Lawyer.

2. The dispute concerns a young boy, parties’ child, who was born on … December 1995.  He is 11 years of age.  The proceedings were commenced by the husband filing of a Form 1 Application on 12 December 2006.  The wife caused to be filed a Form 1A Response on 20 December 2006 and subsequently filed an amended Form 1A Response on 17 January 2007. 

3. A short background to the matter is as follows.  The husband was born on … June 1968 and the wife was born on … April 1973.  They met and first commenced cohabitation in 1991.  Their union was a happy one and they married on … April 1995.  Their relationship however suffered with the passage of time, their union faltered and they separated in January 1999. 

4. There is quite a history to the matter which brings it before me and I have drawn substantially from the wife's Summary of Argument filed by her in an application for a speedy trial.  In July 2000 the wife and child moved from Melbourne to H, in New South Wales where they remained for some four years.  The parties' marriage was dissolved in August 2001.  The following year, in July 2002, the wife married Mr S.  There are two children born of their union namely, A who was born … November 2002, and E who was born on … January 2004.  It appears that the wife and Mr S, together with the child and the two children, A and E, returned from New South Wales to Melbourne in August 2004.

5. There have been earlier orders made by the courts.  The first order was made by consent, as I understand it, on 16 May 2002 and, in essence provided for the child to live with the wife and the husband to have contact with the child for one week in each of the New South Wales state school holidays for two weeks during the long Christmas vacation at times to be agreed and for one week in each December.

6. It is common ground that following separation between the parties in January 1999, the child continued to live with his mother.  There were obviously some attempts between the parties, as I understand it, for reconciliation but that did not eventuate.  It was in August 2004, with the husband's agreement, that the wife relocated back to Melbourne with the child, her then husband and their two children.

7. Following relocation to the State of Victoria, the husband enjoyed greater contact with his son, the tyranny of distance being no longer an onerous hurdle.  It was in late 2006 that the wife, together with her then husband, proposed a move to Western Australia for reasons which appear in her affidavit material.  I do not propose to record the contested issues between the parties at this stage for it would be unfair for me to do so as I do not really have a full understanding of the factual matrix in contest between them.

8. What is clear, however, is that the husband issued the proceedings to which I have referred.  The matter came before the court, firstly, on 20 December 2006 where Cronin J appointed an Independent Children's Lawyer.  He made procedural orders and on 22 December 2006, his Honour specifically restrained the wife from removing the child from the Melbourne metropolitan area without the written consent of the husband or court order.  He adjourned the matter to a priority list hearing on 17 January 2007. 

9. The matter has proceeded quite rapidly and already a family report has been prepared by Ms A dated 15 April 2007 and filed by the Independent Children's Lawyer.  I have had the advantage of reading that report in general terms and have received various submissions from Ms Colla and Mr Crabtree arising from certain matters there stated.

10. With the consent of the parties, the proceedings were placed, as I said, in the Less Adversarial Trial procedure list and came before me this morning.  I have been greatly assisted by the helpful discussion with the husband who appears in person, and with Ms Colla and with Mr Crabtree.  With the assistance of the court listings the matter has been fixed to be heard before me in September 2007, over a period of three days.

11. In those circumstances the parties have worked out a number of procedural orders that will bring the contested application up to trial.  One issue that arose before me was whether or not a family report for the purposes of the trial should be prepared by Ms A, alternatively by Mr S, who has been assigned as the Family Consultant to these proceedings.

12. I have listened carefully to what Mr Crabtree has had to say, together with Ms Colla and the husband.  For the reasons discussed with me in the course of their helpful submissions I propose to bring a fresh view to the proceedings.  That does not mean, by any measure, that Ms A may or may not be called upon to give evidence at the proceedings before me to commence in September 2007.

13. The issue of relocation is a highly contentious one, and is an important issue for consideration before me at the trial. In determining the application I will of course have regard to the best interests of the child, which is the paramount consideration. It is that fact which must determine the outcome, not the rights or interests of either parent. I will be alert to the provisions of section 60B of the Family Law Act 1975 (as amended), recording that children have the right to spend time, on a regular basis, with both parents and other people significant to their welfare and development. For example, an important significant figure in the proceedings is the wife’s husband and the husband's partner, Ms N.

14. Relocation cases are extremely difficult because, in the result, one party is going to feel a deep sense of grievance and disappointment at the outcome.  There is little room, if any, in most cases to find a middle ground and in this particular case it appears to me there is none.  I am conscious of the fact therefore that either way, whatever decision I make, it will have a profound effect upon one of the parties. 

15. There are a number of issues that will be canvassed at the trial.  I need not relate them in these short ex tempore remarks other than to say that they have been ventilated in the course of discussion between myself, Ms Colla, Mr Crabtree and the husband.  At this stage Mr Crabtree, on behalf of the Independent Children's Lawyer, has provided a preliminary view arising from what I would describe as a “preliminary recommendation” of Ms A.

16. This matter will begin afresh before me and I would ask that the parties however between now and the date of trial be alert to the fact that they try to determine the issue themselves by way of sensible and dignified negotiation.  If they are unable to do so, I will determine the issue. 

17. There is one other matter that the parties may consider between now and the date of trial and that is the issue of a Judicial Settlement Conference to assist in the determination of the contest.  In that regard I would simply incorporate into these short ex tempore remarks that I have considered such a process in cases such as A & A [2004] FamCA 879; K & K [2006] FamCA 126; and T & T [2006] FamCA 130.

18. Ultimately it will be a matter for the parties.  I have made it clear in the course of discussion with counsel and the husband that the attitude a court takes to a detailed welfare report has been settled long ago (Paul v Paul (1979) FLC 97 13) in effect determining that there is “no magic” in a family report.  A judge is not bound to accept the recommendations and there should not be any suggestion that a Family Consultant is usurping the role of the court or that the judge is abdicating his or her responsibilities.

19. No particular advantage or presumption attaches to the evidence of the Family Consultant on issues of fact merely by reason of his office.  There may well arise in this case, issues of credit and matters such as that.  I simply do not know at this stage.  Ultimately it will be a comparison of the various competing proposals of each of the husband and the wife. 

20. In the circumstances I propose to make the procedural orders bringing the matter up to trial.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  6 June 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WATERHOUSE & SHELLEY