Wellsound and Wellsound

[2010] FamCA 468

FAMILY COURT OF AUSTRALIA

WELLSOUND & WELLSOUND [2010] FamCA 468

FAMILY LAW – PRACTICE AND PROCEDURE – International relocation – Expedited first day before a judge

Family Law Act 1975 (Cth)

APPLICANT: Ms Wellsound

RESPONDENT: Mr Wellsound

FILE NUMBER: MLC 3654 of 2010

DATE DELIVERED: 9 JUNE 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: IN CHAMBERS

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: KENNEDY WISEWOULDS

LETTER RECEIVED FROM

SOLICITOR FOR THE RESPONDENT

Orders

1. That the request of the wife by way of submission filed 12 May 2010 for an expedited hearing is granted.

2. That the application of the husband filed 22 April 2010 and the response thereto of the wife filed 12 May 2010 are adjourned to a first day hearing before the Honourable Justice Dessau at a time to be fixed on 28 July 2010.

3. That the parties attend the Child Responsive Program for the preparation of a Children and Parents Issues Assessment with the applicant wife attending at 9.15am on 6 July 2010 and the respondent husband attending at 11.00am on 6 July 2010.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3654  of 2010

MS WELLSOUND

Applicant

And

MR WELLSOUND

Respondent

REASONS FOR JUDGMENT

1. Ms Wellsound (“the wife”) applied by written submission on 12 May 2010 for an expedited hearing of her substantive application to move to live in the United Kingdom with the child A who was born in January 2005.

2. The wife’s application was made pursuant to leave given in an order by Senior Registrar Fitzgibbon on 3 May 2010.

3. Mr Wellsound (the husband) consented to the orders made on 3 May 2010 but did not file any response to the wife’s application for the expedited hearing.

4. The parties had married in 2002 in the United Kingdom and the child was born there. The reason why the parties came to Australia was for the husband’s occupation which is as an executive officer of a major corporation.

5. The marriage broke down in April 2009.

6. It was the husband’s application filed in April 2010 which began the proceedings in this Court. He sought orders that the wife be restrained from removing the child from Australia. His application as it currently reads, did not challenge the making of an order for the child to live with the wife but he sought that he have time with his daughter.

7. The wife’s response challenged the jurisdiction of this Court apparently because proceedings had been issued by her in the United Kingdom. Regardless of that, the parties agreed to interim orders on 3 May 2010.

8. The Court made an order on 3 May 2010 that there be appointed an Independent Children’s Lawyer and to the credit of Victoria Legal Aid, a Notice of Address for Service was filed on 7 May.

9. The submission of the wife said that the parties decided in the United Kingdom that Melbourne would be a good place to work for three to five years during the child’s infancy and then return to the United Kingdom for her schooling.

10. Upon arrival in Australia, the parties sought and obtained permanent residency status but the wife submitted that it was never the intention to remain permanently here. She pointed to the rented accommodation and to the fact that they have retained money and property in the United Kingdom.

11. The wife said that her network of friends and family is all in the United Kingdom as are the husband’s children and grandson.

12. It goes without saying that the wife has a desire to return home to the United Kingdom.

13. The facts are therefore relatively uncontroversial.

14. Rule 12.10A of the Family Law Rules 2004 provides that a party may apply to expedite the first day before the Judge. That rule provides the matters that the Court may take into account. I turn to those matters.

15. There can be no suggestion here of any delay in the proceedings although I note that the separation occurred in 2009. I would not find that an unreasonable delay in any event.

16. In her affidavit filed in respect of the interim application for orders, the wife set out the relationship had problems for a number of years. She said that after moving to Melbourne, things did not improve and she felt anxious and lonely. In turn, she consulted her doctor and was prescribed medication. The parties had counselling in 2008 and in 2009, the parties agreed to separate.

17. There is no prejudice that I can see to the husband in the expedition of the final hearing.

18. In these times of reduced judicial resources, it is difficult to simply allocate time when parties desire it. As the Court is reduced in numbers, so its work increases in complexity. International relocation of children has always been seen as a complex problem because of the impact upon the very nature of the relationship between a parent and a child. Within Australia’s borders, the tyranny of distance creates its own dilemma but not many places are more than a few hours away. So too with the advanced electronic communications in this country today, parents are able to see and hear their children without major problems and at reasonable costs. Unfortunately, the same cannot be said of international moves such as to Europe where there are long travelling distances, time zone problems and high costs of transport and accommodation. By the same token, the imposition of restrictions on a parent’s desire to be with family and friends from whom she has been separated is well-understood. There is no simple answer and that in itself creates the complexity.

19. Any case involving children deserves the best resources that the Court can provide and in cases such as this, having a child in a holding pattern with uncertainty for her parents is not in her best interests.

20. In this case, an early first day before a judge may give the parties an opportunity to explore all of these issues and decide what they want to litigate about and what they want to trial for the sake of their child.

21. I am satisfied on what I have read that the matters in rule 12.10A have been established.

22. On the limited material available to me, I find:

    (a)There are no issues of financial hardship;

    (b)The matter cannot also be permanently resolved by the continuation of the interim orders made on 3 May 2010;

    (c)There are no issues of violence evident.

23. Taking all of the relevant matters into account, this is a matter that justifies expedition to a first day of hearing.

I certify that the preceding Twenty Three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  9 June 2010