WEERASINGHE & COOK

[2018] FamCA 37

FAMILY COURT OF AUSTRALIA

WEERASINGHE & COOK [2018] FamCA 37

FAMILY LAW – CHILDREN – Relocation – Best interests – Where wife proposes relocation to the Caribbean – Where children spend no time with the husband –Where it would be in the children’s best interests to permit relocation – Where the matter was listed for interim orders – Where the wife asked the court to make final orders – No appearance from the husband – Where relocation order stayed until noon the following day– No challenge from the husband to the orders sought – Relocation allowed.

Family Law Act 1975 (Cth) s 61C

APPLICANT: Ms Weerasinghe

RESPONDENT: Mr Cook

FILE NUMBER: PAC 1753 of 2015

DATE DELIVERED: In chambers on 1 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 19 & 20 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harper

SOLICITOR FOR THE APPLICANT: Gordon & Barry Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

IT IS NOTED:

1. The following definitions for the purpose of these Orders:

   a)“Act” means Family Law Act 1975 (Cth);

   b)“B” means B Cook born on … 2011;

   c)“Children” means B and C;

   d)“Children’s school” means such school as the children are attending following their relocation to the Caribbean;

   e)“Financial  Proceedings” means the proceedings in relation to the parties’ property interests  PAC 1753/2015;

   f)“Husband” means Mr Cook born … 1984;

   g)“C” means C Cook born on … 2013;

   h)“Parties” means the Husband and the Wife;

   i)“Mr D” means Mr D born on … 1978;

   j)“Wife” means Ms Weerasinghe, born on … 1983.

IT IS ORDERED:

1. B and C shall live with the wife.

2. B and C shall spend time with the husband by agreement.

3. B and C are permitted to travel internationally as provided by section 11(1)(b)(ii) of the Australian Passports Act 2005 and, for this purpose, the wife is permitted to apply for an Australian passport for the children under the provisions of Section 11(1)(b)(i) of the Australian Passports Act 2005.

4. The wife shall be permitted by these orders to do all acts and things and sign all documents necessary to apply for a passport for the children pursuant to Order 4 and including any subsequent renewal of a passport for each of the children.

5. Forthwith upon the wife relocating the residence of B and C from the Commonwealth of Australia in accordance with Order 5 the wife shall do all acts and things and sign all documents necessary to facilitate B and C communicating with the husband by way of Skype, video call, email, Facetime, WhatsApp, telephone and/or SMS no less than once per week or at such other times as are agreed to by the parties.

6. Upon B and C commencing to reside outside the Commonwealth of Australia pursuant to these orders, the wife shall do all acts and things and sign all documents necessary to facilitate B and C spending time with the husband in Australia and/or such other location as may be agreed upon by the parties in writing on no less than two occasions per year at times and dates as agreed by the parties.

7. On such occasions as the husband is present in the Caribbean or in the same city as where the children reside, the wife shall do all acts and things and sign all documents necessary to facilitate B and C spending time with the husband at such times and dates as is agreed by the parties.

8. Within 7 days of the wife’s arrival in the Caribbean, the wife shall do all acts and things and sign all documents necessary to provide the husband with the address at which the children reside and shall within 24 hours of any change in that address provided the new address to the husband.

9. The wife shall be permitted to relocate the residence of B and C from the Commonwealth of Australia to the Caribbean, with such relocation to occur as from 1 January 2018 for a period of two years or for such other period as the parties agree or as ordered.

11. The husband shall provide to the wife 28 days’ notice of his intention to travel to the Caribbean and such notice shall be in writing and include details of the husband’s itinerary, return travel/flight details and contact details in the Caribbean.

1. That for the period the wife and children reside in the Caribbean as per these orders the wife shall have sole parental responsibility for making decisions in relation to the children’s schooling and medical and associated health treatment.

2. Unless it is an emergency the wife shall give the husband notice of any major decisions to be made pursuant to the above order.

3. Stay the operation of Orders 2 – 13 until 12 noon 20 December 2017.

4. That the solicitors for the wife serve on the husband no later than 4:00 pm today a sealed copy of these orders at the email address …

5. The application for interim and final orders is listed for further hearing before me at 12 noon on 20 December 2017.

6. In the event the husband opposes the orders made today coming into full effect at 12 noon tomorrow he must;

a)Appear personally before me tomorrow, and

b)Provide at the appearance a statement or affidavit in support of his opposition.

18.  It is noted that if there is no appearance by or on behalf of the husband that unless there is a further order of the court, the orders made today will come into effect.

19. The wife’s costs be reserved.

20. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym < Weerasinghe & Cook has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 1753 of 2015

Ms Weerasinghe

Applicant

And

Mr Cook

Respondent

REASONS FOR JUDGMENT

1. By an initiating application filed on 11 December 2017, Ms Weerasinghe (“the wife”) applied for a suite of parenting orders in relation to her and Mr Cook’s (“the husband”) children.  The children are B who was born in 2011 and C who was born in 2013 (“the children”).  The parties separated in mid-2014, following which the children lived with the wife.  In the intervening years, the children spent time with their father, but as time passed the frequency of contact diminished until, in July 2017 it ceased. 

2. The wife has re-partnered and in late 2017, her partner was offered a position in the Caribbean to commence on 1 January 2018 for a period of two years.  The position comes with a significant salary and represents a wonderful opportunity for the wife and children to experience another culture and lifestyle.

3. Directly and through her solicitors, the wife sought the husband’s consent to her taking the children to live abroad and orders in relation to arrangements as to contact and communication during that period.  Although the husband did not object to the proposed relocation, it would seem he was unwilling to agree to orders that the wife proposed to give effect to her relocation proposal.

4. Until the wife commenced these proceedings, neither party had applied for orders in relation to the children and thus, in a strict sense there was no impediment to the wife leaving Australia with the children.  However, sensibly and for an abundance of caution, the wife commenced the proceedings mentioned at the outset.  Copies of the wife’s application and supporting documents were served on the husband by email on 12 December 2017.  That email and another sent to the husband on 15 December 2017 were “read” such that I am satisfied that he was given notice of the application and the documents upon which the wife relied.  However, unfortunately, I could not be satisfied that the husband understood that on 19 December 2017 the wife would ask the court to make final orders in accordance with her application.  This is because only the application for interim orders sought in the same document was listed in the duty list whereas, the application for final orders was given a return date in January 2018.

5. The husband did not appear on 19 December 2017.  Believing that the husband had tacitly agreed that the wife could leave Australia with the children, they were all due to depart Australia on 22 December 2017.  The urgency of the situation was manifest and the proceedings were transferred for an urgent hearing.  The evidence relied upon by the wife readily established that it was in the best interests of the children for them to continue to live with her and relocate as planned.  The wife was thus given leave to proceed with her application for final orders on the basis that those orders would be stayed until noon the following day.  The solicitors for the wife were directed to serve the husband by 4:00pm on 19 December 2017 and, if he opposed the orders coming into full effect the husband was directed to appear personally the following day.

6. The husband was duly served but there was no appearance by him or on his behalf when the matter resumed the next day. 

7. It follows, that the husband was given the opportunity to challenge the orders sought by the wife and to put in issue the factual matters upon which she relied.  His failure to do so enabled me to proceed on the basis that he was satisfied that it was in the best interests of the children for them to continue to live with their mother and to enjoy the opportunity presented to live abroad. 

8. Although the husband did not challenge the wife’s application that she have sole parental responsibility for the children, I was not satisfied that an all-encompassing order for sole parental responsibility in the wife’s favour was necessary or in the best interests of the children. This is because in the nearly three and a half years following separation, the scheme provided by s 61C of the Family Law Act 1975 (Cth) (“the Act”), namely that each parent has parental responsibility of a child who is not 18 years of age, has worked well. The only reason advanced to change operation of the provision was said to be practical difficulties that might arise in the Caribbean concerning the children’s schooling and medical issues. It was accepted that foreign education and medical institutions might not appreciate the authority with which, pursuant to s 61C, the wife was cloaked and thus, it was in the best interests of the children that potential difficulties arising therefrom be averted. Otherwise, it is a very serious step to strip a parent of his or her parental responsibility for a child. That step ought not to be taken unless it is in the best interest of a child which, in this case was not established.

9. The remaining orders give effect to the primary decision to allow the wife’s relocation application and her proposals concerning communication and contact between the children and their father while they live abroad.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 1 February 2018.

Associate:

Date:  1 February 2018