Whitten and Whitten and Anor

[2015] FamCA 394

FAMILY COURT OF AUSTRALIA

WHITTEN & WHITTEN AND ANOR [2015] FamCA 394

FAMILY LAW – CHILDREN – Interlocutory Application – Where the mother had unilaterally relocated with the children – whether events since the interim hearing in
February 2015 justified the reopening of interim parenting orders – where there is nothing alleged by the mother that would persuade the Court that the interim orders of February 2015 should not continue to operate – where there is a continuing positive benefit to the children of their parents being in the same locality – where orders are made for the mother to return and re-establish a residence for the children – where the children may spend additional time with the father until the mother has re-established her residence and the orders of February 2015 resume

APPLICANT: Mr Whitten

FIRST RESPONDENT:	Ms Whitten
SECOND RESPONDENT:	Whitten & Son Pty Ltd

FILE NUMBER: NCC 2457 of 2014

DATE DELIVERED: 8 May 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 7 May 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mullane & Lindsay

COUNSEL FOR THE FIRST RESPONDENT: Mr Mooney

SOLICITOR FOR THE FIRST RESPONDENT:	Curtis Grant Irving
SECOND RESPONDENT:	Not Applicable

Orders

1. That within 28 days of the date of these Orders the mother shall re-establish a residence in the C Town area, either at her previous residence

   
   

   B Street, C Town, or any other suitable residence within the C Town area NOTING that the C Town area is defined for the purpose of these Orders to include the townships of D Town and E Town.

2. That Orders 2 to 5 inclusive of the interim parenting Orders made

   
   

   18 February 2015 are suspended for 28 days or until the mother has re-established a residence for the children in the C Town area whichever event occurs later.

3. That pending compliance by the mother with Order 1 of these Orders the children shall spend time with the father as follows:

   F and G:

   From 9.00 am Friday 22 May 2015 until 1.00 pm Tuesday 26 May 2015;

H:

From 9.00 am to 11.00 am on Friday 22 May 2015 AND from 11.00 am to
1.00 pm on Tuesday 26 May 2015.

3.1      For the purposes of changeover of the children:

The father shall collect the three children from the mother or her nominee at the home of the maternal grandparents in Suburb I (“the Suburb I home”) at 9.00 am on 22 May 2015 and shall return H to the mother at 11.30 am at a prior agreed venue, or failing agreement, at the Suburb I home.

The mother shall deliver H to the father or his nominee at 11.00 am on Tuesday 26 May 2015 at the home of the paternal grandparents at 2 B Street, C Town (“2 B Street”).

The mother shall collect the three children from the father or his nominee at 2 B Street at 1.00 pm on Tuesday 26 May 2015.

3.2F and G:

From 1.00 pm Friday 4 June 2015 until 11.00 am Monday 8 June 2015.

H:

From 1.00 pm to 3.00 pm on Friday 4 June 2015 AND on Monday 8 June 2015 from 9.00 am to 11.00 am.

3.3.      For the purposes of changeover of the children for this period of time:

The mother shall deliver the three children to the father or his nominee at 2 B Street at 1.00 pm on Friday 5 June 2015.

3.4.The father shall deliver the three children to the home of the mother in the C Town area at 3.30 pm on Monday 8 June 2015 UNLESS the mother has not established a residence in the C Town area in which case the children shall continue to live with the father until the mother has done so.

1. The mother shall advise the father in writing (which may include email or SMS text) of her residential address and contact details as soon as practicable after re-establishing a residence in the C Town area.

2. That each party is restrained from causing or permitting the children to ordinarily reside outside the C Town area.

3. That each parent shall do all acts and things necessary to re-enrol F and G in their C Town pre-school to recommence attendance no later than Thursday 11 June 2015.

4. That the costs of the father are reserved.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2457 of 2014

Mr Whitten

Applicant

And

Ms Whitten

First Respondent

And

Whitten & Son Pty Ltd

First Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These are interlocutory applications concerning three very young children, twin girls, F and G, who will be four in August 2015, and a 10-month-old baby, H. 

2. The applicant in this and the final application is the father.  The respondent is the mother.  Both parties were legally represented, the mother by Counsel, the father by his solicitor. 

3. On 18 February 2015 there had been an interim hearing of parenting issues and spousal maintenance.  The resulting Orders relevant to this application were, in summary, that the children live with the mother and spend time with the father, in the case of the twins, for two and a half days each week, and in respect of H, for two periods of two hours per week.  There was no appeal from those Orders. 

Short History of Relevant Events

1. On a final basis the mother proposes that the children live with her in one of these three areas:  Newcastle, the Central Coast or Sydney.[1]  The interim orders sought in that document also included order 4: relocation in the same terms. 

   [1] Mother’s Response filed 13/11/2014

2. Of the consent Orders made in the Federal Circuit Court on

   
   

   18 November 2014, there were two relevant Orders which were discharged on 18 February 2015.  They are:

   a)Order 4: “The place of changeover shall be at the Mother’s place of residence, being [B Street, C Town]”; and

   b)Order 5: “The mother will ensure that the permanent and primary place of residence for the children is [B Street, C Town]”. 

3. The issue of where the mother wished to live was clearly a live issue from the commencement of the proceedings. 

4. The proposed minute of order relied on by the mother in the February 2015 hearing[2], did not include a proposal for relocation.  Her residence for changeovers was identified in paragraph 5 of that minute:  “The place of changeover shall be at the mother’s place of residence, being [B Street, C Town]”. 

   [2] Exhibit M2

5. Drawn to my attention in submissions was the Child Dispute Conference Memorandum of 16 February 2015, prepared prior to the interim hearing:[3] 

   The mother proposes that when she receives her financial settlement (approximately $1,000,000) that she will move to the Central Coast to be closer to her parents who live at [Suburb I].  She is of the view that living on the Central Coast will still allow the father to have a relationship with the children. Although the mother is of the view that the father has never bothered to have a relationship with children [sic] since they were born, so she does not expect that he will make an effort if she moves to the Central Coast. 

   [3] Child-Dispute Conference Memorandum dated 16/02/2015, page 2

6. During the course of submissions in the February 2015 hearing, the solicitor for the father was directed by his Honour not to submit on the topic of the mother’s relocation because “she is not seeking those orders”.  The solicitor ceased that submission, conceding without objection by Counsel for the mother that, “Yes, that aspect had been deleted”.[4]

   [4] Transcript of the Proceedings of 18/02/2015, par 243

7. In any event it was clear from the minute of order relied on that the mother was not proceeding with an application to relocate the children’s residence. 

8. There is no doubt at all that the interim matter proceeded on the basis that the mother would be living in C Town, at least until the property dispute had been resolved. 

Events Giving Rise to this Application

1. On Saturday 28 March 2015 at 6.15 pm the mother sent the father a text message advising that she had gone to Sydney.[5]  The message read as follows:

   The front door key is under the lazy susan on the outdoor table.  We now permanently reside in [Suburb I].  Our new address is [reference to the address of the maternal grandparents].

   [5] Affidavit of the Father filed 13/04/2015, Annexure B

2. Her solicitor confirmed that his instructions were that the mother had relocated to Sydney. 

3. There had been no prior notice to the father, no application to vary the Orders which were by then 38 days old, and no proposal for alternate arrangements for time. 

4. The father responded in a measured way.  He engaged in correspondence through his lawyers with the lawyers representing the mother.  That correspondence is annexed to his first affidavit. 

5. On 13 April 2015 he filed an urgent Application in a Case.  The orders sought were for the mother to return to live in C Town and not to leave. 

6. Probably the mother was advised quite properly that the jurisdiction of the Court does not extend to compelling parties as to where they live.

7. The mother in response to this application e-filed a Response to the Application in a Case at 4.58pm on the day before the father’s application was due to come before the Court in a duty list.  The orders sought in that Response were dismissal and costs.  The mother did not take the opportunity to seek to vary the current Orders or provide any explanation for taking the children to live in Sydney without prior discussion. 

8. One 1 May 2015 the application of the father came before the Court.  Leave was granted to the father to file and rely on a minute of order, which became Exhibit 1, which sought orders that the mother cause the children to live in the C Town area. 

9. The mother was granted leave and prepared a handwritten affidavit.  The father, having had the opportunity to read it, then asked for time to respond.  In those circumstances the application was adjourned to enable both parties to properly prepare and respond.  Directions were made for the filing of affidavits. 

10. On 7 May 2015 the matter came back before the Court for hearing. 

11. The material relied on by the mother was a minute of order dated 6 May 2015, an affidavit of the mother filed 4 May 2015, an affidavit of the maternal grandmother filed 4 May 2015, and for the father his affidavit filed 13 April 2015 and an affidavit in response filed 7 May 2015. 

12. The orders proposed by the mother were for a further period of time for the children to see the father in May 2015, with variations for H, with the father to collect and deliver the children from Sydney. 

13. In order 4(e) the mother also proposed this order:

    [T]he mother is at liberty to relocate within the Greater Metropolitan Sydney area upon one weeks’ notice in writing to the father and exchange shall thereafter occur at the mother’s new address.

14. It was submitted that this was a signpost to the mother moving again from her parents’ home in Suburb I, although there was no proposal in the mother’s affidavit about that.  It may have been a retrospective application.  I am unable to determine that. 

The Issue

1. This matter therefore became an exercise in determining whether events since 18 February 2015 justified the reopening of interim parenting orders. 

2. The circumstances of the mother’s move with the children were certainly sufficient justification for hearing the applications urgently. 

3. The affidavit relied on by the mother was a mixture of events, including financial aspects, which took place prior to 18 February 2015 and which had been taken into account or could have been in the interim hearing at which both parties were legally represented, the mother by Counsel.  Although responded to by the father, I have not taken those matters into account. 

4. Potentially relevant matters raised by the mother of events after

   
   

   18 February 2015 were:

   a)That the au pair she had employed had left her employ, although there was no evidence as to whether that was voluntary or on account of the mother’s move to Sydney.[6]  In this regard the mother said she could not afford another au pair and also that she had not been able to find one. 

   b)That the mother had moved without telling the father as “I was frightened that there may be a confrontation”.[7] The father in his material rather shared the concerns of confrontation and gave evidence of his decision to strictly comply with orders in order to avoid the parties coming together. Such is the level of tension between them on many issues. 

   [6] Affidavit of the Mother filed 04/05/2015, par 4

   [7] Affidavit of the Mother filed 04/05/2015, par 8

5. The mother referred to her sources of income.[8]  However, they had been determined in the February 2015 hearing as to spousal maintenance by his Honour and otherwise child support and Centrelink payments were in place.

   [8] Affidavit of the Mother filed 04/05/2015, par 10

6. The mother also referred to financial support by her parents with the provision of their home.  In that regard, the children, whilst living in the home of the maternal grandparents, have been enrolled in dancing, gymnastics and pre-school, which suggests that there is discretionary money available to the mother, at least to some extent, whilst living in Suburb I. 

7. The mother referred to isolation from family support.[9]  However, there was no evidence to suggest that that position had changed in any way between February 2015 and the date of departure. 

   [9] Affidavit of the Mother filed 04/05/2015, par 31

8. The mother also referred to the failure of the father, in her view, to respond to urgent requests for him to spend time or otherwise assist with the children.  The father responded in his material by his focus on strictly complying with the orders for the reasons previously stated. 

9. The mother, in her affidavit, also raised some matters relating to the period since her departure to Sydney, in particular, complaints about the children and some distress at changeovers.

10. Those matters will no doubt be inquired into in a final hearing if they continue to be relevant. 

11. However, sadly, it does seem likely that at this stage, conflict at a high level may continue between the parties wherever each of them lives. 

12. There was also a complaint by the mother that on an occasion of time when the father travelled to Sydney, collected the twins and brought them back to C Town, then returned them to Sydney, that on the return journey the children had slept all the way and had eaten lunch late. 

13. There was also a complaint raised by the mother, and in particularly the maternal grandmother, which says this:[10]

    When the girls returned on Monday 27^th April I came home to find:

    a)G injured with ring marks on both their legs;

    b)G with a red and inflamed vagina that required medical attention;

    c)F especially, terrified of being locked in the dark in their bedroom.  She was distressed and was crying to me “daddy locks me in my room”. “it was dark”, “I was scared”,  “I want to stay with you and mummy nana”.

    d)G once again started having nightmares.

    [10] Affidavit of the Maternal Grandmother filed 04/05/2015, par 6

14. The father agreed that he had observed some difficulties for G:[11]

    I did not notice marks around [G’s] ankles, if they were present they could have been caused from her wearing rubber boots on the farm, they wore them almost the entire time they were here, and when socks fall below their top, it leaves a distinct red mark around that area.  Soon after arrival from Sydney I bathed [G] and did notice a red irritation around her vagina, this looked unusual to me however I did not mention it to anyone else.  This irritation could have been caused by the strap between her legs in her car seat, as she slept for a long time on both trips, and she may have slumped forward in her seat putting pressure on that area.

    [11] Affidavit of the Father filed 07/05/2015, par 58

15. Since members of both families have noticed this aspect, it does seem that it is consistent with such a long journey creating physical discomfort for young children strapped in their car seats. 

Conclusion

1. There are already many contested issues to be heard on a final basis between these parties, if that is what has to happen.  There is, however, in my view, nothing alleged that would persuade the Court that the orders of

   
   

   18 February 2015 should not continue to operate.  There is a continuing positive benefit to the children of their parents in the same locality. 

2. It is, of course, essential that H have the opportunity to see the father for the short periods ordered on a regular basis.  This will be especially so now to restore and maintain the attachment to the father disrupted by the removal to Sydney. 

3. The father, in his application, defined a return to C Town in a broader way.  He confirmed the availability of the home in C Town which the mother had left on 28 March 2015.  This is a property owned perhaps by the parties or the paternal family.  I am not aware of how the property is held.  However, there is no doubt it is available to the mother. 

4. The father acknowledged that after the sadness and disruption caused by the children being removed, and perhaps the same since separation, the mother may not wish to continue to live in that house so close to himself and the paternal grandparents although, clearly, it would be the cheapest option for her.  The father proposed that local townships, D Town and E Town, should be included as part of the definition for return. 

5. Having read all of the material and for the reasons outlined above, I have concluded that there is no basis for varying the current interim orders other than making provision for time for the mother to return and re-establish a residence for the children in the C Town area and, accordingly, to identify two periods of time for the father, based on his proposals in his affidavit, which will culminate in return of the children to live with the mother in her new residence re-established.

6. I did give Counsel for the mother the opportunity to obtain instructions on the time that the mother needed to return.  As she had done on 1 May 2015, the mother responded through her Counsel, and directly:

   I won’t go back to [C Town].

7. Accordingly, Counsel was unable to obtain instructions and I have allowed a period of 28 days. 

8. With the consent of both parties, an Independent Children's Lawyer has been appointed to represent the interests of the children and the matter will otherwise be referred to the Registrar for progression to final hearing in due course. 

9. I make orders accordingly. 

I certify that the preceding forty nine (49) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Cleary delivered on

8 May 2015.

Associate:  J Gilmour

Date:  25 May 2015