Weatherly and Meakes

[2007] FamCA 1154

FAMILY COURT OF AUSTRALIA

WEATHERLY & MEAKES [2007] FamCA 1154

FAMILY LAW – CHILDREN – With whom the child lives – Relocation – Substantial and significant time – Family Report ordered

Family Law Act 1975 (Cth)

APPLICANT: Mr Weatherly

RESPONDENT: Ms Meakes

FILE NUMBER: HBC 930 of 2007

DATE DELIVERED: 19 September 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 19 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. THAT all previous orders be discharged.

2. THAT the application in a case be adjourned to a Judicial Duty List at 10 am on 29 October 2007.

   IT IS DIRECTED

3. THAT a short form of family report be prepared and, if necessary, provided orally on that day.

4. THAT the parties and their legal advisers attend at the family consultant's office immediately after the adjournment of these proceedings.

   IT IS FURTHER ORDERED

5. THAT both parties be given liberty to apply on seven days' notice to the court and to each party.

6. THAT by consent, the father and the mother have equal shared parental responsibility for the child born … June 2006 (“the child”).

7. THAT by consent, that the child live with the mother.

   UNTIL FURTHER ORDER

8. THAT the child spend time with the father from 9 am to 3 pm each Sunday, and from 5.30 pm Wednesday to 8.45 am Thursday.

9. THAT pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   IT IS DIRECTED

10. THAT a transcript of my reasons be taken out and placed on the court file. 

    IT IS NOTED

11. THAT I have not finally determined the interim application and that the issues of return to Brisbane and the issues of the time that the child spends with his father in the interim have yet to be fully determined.

    IT IS CERTIFIED

(12)THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 930 of 2007

MR WEATHERLY  

Applicant

And

MS MEAKES  

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between Mr Weatherly, ("the father") and Ms Meakes ("the mother").

2. The proceedings relate to a child who was born in June 2006 and has just recently had his first birthday.

3. In his amended application filed 13 September 2007, the father seeks orders that the parties have equal shared parental responsibility for the child.  This part of the application is not opposed.

4. The father then seeks orders that the child spend time with him from Friday to Monday and from Wednesday to Thursday in week one, and from Sunday to Monday and Wednesday to Thursday in week two, which in essence seems to be an application for significant and substantial time or equal time.

5. The father also seeks to restrain the mother from having the child's residence in Queensland.

6. The mother seeks orders set out in her response dated 22 August 2007 that the parties have equal shared parental responsibility, that the child live with the mother, and that the father spend time and communicate with the child in Queensland, depending on whether the father is living in Queensland or not living in Queensland.

7. To say this is a difficult matter is an understatement. One of the underlying features of this case is that the determination on the interim matter is likely to be significant in terms of the final determination of this matter on the basis that it will take about a year in the Family Court for the matter to be heard, whether that be in the Family Court in its Hobart registry or the Family Court in its Brisbane registry.

8. There is some discussion at the present time as to whether there will be a federal magistrate appointed to Hobart.  If that occurs, it is likely that this matter will be heard sooner rather than later in Hobart, but that is pure conjecture and something which I could have no regard to as there is no real indication that that is in fact going to occur.

9. The mother is aged 34.  The father is aged 27.  There seems to be agreement that the parties commenced cohabitation in the earlier part of 2005 whilst they were living in Tasmania.  There is an issue as to the precise date, but not as to the approximate period of time.

10. The parties separated in either May or June 2007 in circumstances where the parties had moved to Western Australia in 2005 and had separated whilst in Western Australia in 2005.

11. It is clear that the mother left a home in Western Australia and moved to Brisbane without the consent of the father.  It is equally clear that the father at some levels acquiesced the mother staying in Brisbane as there seems to be no issue about the limited text messages which are set out in paragraph 12 of an affidavit of the maternal grandfather filed 18 September 2007.

12. There is an issue as to whether the mother was living in a hotel for a week or so in Brisbane or whether she was living for some time with her sister in Brisbane.  Her sister being in the Australian Defence Force, as I understand it.

13. The father in his text messages asked the mother on 24 June how she was coping with the move to Brisbane, on 30 June asking how she was going, asking if he could send some money.  On 1 July saying, "I will put some money in for you.  Hope you get a really nice [sic] for [the child] and [D], I can be a friend for you if you come to Tassie for a visit."

14. The mother decided to visit Tasmania and on her arrival these proceedings were commenced and the mother has been left in Tasmania since that time.

15. There are two other children of the mother who are not children of this relationship.  There is a child J who lives on the Gold Coast with his father.  There is an issue which I cannot determine as to the involvement between the mother and J over the last few years, and more particularly between the child and J, and another child, D, and J over the last few years.

16. There is another child, D, who is aged 11.  D's father is presently is prison and is likely to be in prison for some years into the future.  D, it seems not in issue, was in the care of his maternal grandparents until about January 2006 and then moved to Western Australia to be with the mother, the father, and about six months later, with his brother, the child, in that state.

17. When the mother came back to Hobart in July 2007, and with the advent of the proceedings, D was enrolled in B Primary School on a temporary basis according to the maternal grandfather.  The maternal grandfather proposes that he and his wife propose or are considering moving to Queensland in the event that the mother is entitled to move to Queensland.  That evidence has not been tested.

18. On his return to Tasmania, the father has purchased a home at Hobart at M which is some distance from B, and that purchase, as I understand it, should settle in the near future.

19. It is not in issue that the mother has been and continues to be the primary carer for the child.  The father sees the child presently each Sunday from 9 am to 3 pm, and each Wednesday from 5.30 pm to 9 am Thursday morning.

20. The mother has not settled in either Brisbane or Hobart at this time, although clearly had an intent to settle in Brisbane.  The counsel for the mother says that the father had, in essence, tricked the mother into coming to Tasmania.  The difficulty with this case would be that if the father had commenced proceedings in Western Australia, it is probable that the mother would have been ordered to return to Western Australia with the child.  If the mother had remained in Brisbane and not chosen to visit Tasmania, it would be unlikely, it seems to me, that the court would have ordered the mother to come down to Tasmania with the child.  My task, of course, is to adopt a child-focused approach in this very difficult factual situation.

21. The father has most of his family in Tasmania and says that it is important for him to maintain and then develop his relationship with the child and with his broader family, although this did not seem to concern the parties prior to June of this year.  The mother has family in both Tasmania and Brisbane.

22. The father is a tradesman by occupation, and it is open to him, if he chooses, to move to Queensland to be near the child if that is the order I make.

23. This is a matter where there is to be a consent order for equal shared parental responsibility and, therefore, I am obliged to consider equal time or significant and substantial time.  I have to consider that though in the light of a very young child who is, on the material before me, it seems, principally attached to the mother, and that is not to derogate from the relationship between the child and the father, but simply reflecting the arrangements that the parties have put into place.

24. In terms of section 60CC(2)(a), irrespective of the outcome of these proceedings a child will have a meaningful relationship with the child's mother.  If the child is left in Tasmania, he will have a meaningful relationship with his father.  If the child goes to Brisbane or returns to Brisbane and the father does not go to Brisbane, that relationship will be damaged.  If the father goes to Brisbane that relationship will be enhanced.

25. There is no need to protect the child from either parent.  Clearly both make some criticisms of each other, but the nature of the applications are that they are not wanting to prevent the other from having a relationship with the child.  The child is at an age and maturity where there is no evidence of any particular views that he has.

26. I have already commented on the relationship between the child and each of the parents.  There is an issue as to the willingness of the mother to facilitate and encourage the relationship between the child and the other parent by moving from Western Australia to Queensland, but that is a very small question mark.

27. The impact of both approaches is going to be significant in terms of the child in that the mother will be no doubt unhappy if she is required to remain in Tasmania, although I cannot require her, I can simply the child to remain, and I take it, Ms Nettlefold, that if I require the child to remain, the mother is likely to remain as well.  That is not saying I have come to that decision as yet.

28. I have commented on the capacity to parent.  The mother, there is no issues about her capacity.  There is certainly no issues about the capacity of the father to care for the child on the basis the mother has consented to the child staying overnight with him.

29. There is clear conflict between these parties and, of course, there is their respective relationship with their other siblings.

30. On the material before me, I do not know that I can do justice to either party to make even an interim determination at this stage.  What I would like to do, and I will take submissions from counsel, is stand it over for a few weeks and request the provision of a short family report so I have some indication of the relationship between this child and each of his parents.  I will make that a very short period of time so that delay does not give effect to the application of the father that the child remain here permanently or pending an outcome of these proceedings.

31. The advantage of that family report, it would seem to me, would be two-fold, (1) would allow the parties perhaps a bit more time to reflect on where they are going with this child, because my concern is that no matter what decision the court makes, if I send the child back to Brisbane, the father is going to be unhappy and perhaps be separated from his child.  If I leave the mother here she is going to be very unhappy and perhaps impact on her relationship with the father.

32. So it gives them time to reflect on that, gives me time to get a family report so I understand the dynamics of the relationship, and finally, if there is to be another appointment in this state, it may well be that a final hearing can be heard on this matter very, very quickly, and rather than have a judge or a judicial officer put a band-aid approach in respect of this, it would enable it to be heard properly and in a considered way rather than in a short form way.

I certify that the preceding 32 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.

Associate

Date:  19 September 2007