Wickham and Jones

[2012] FamCA 124

FAMILY COURT OF AUSTRALIA

WICKHAM & JONES [2012] FamCA 124

FAMILY LAW - CHILDREN – INTERIM RELOCATION – Interim Application filed by mother to relocate child to NSW – application opposed by father – application adjourned for final hearing

Family Law Act 1975 (Cth) ss 60B, 60CC(2), (3), (4) and (4A)

Goode & Goode (2006) FLC 93-286
Morgan & Miles (2007) FLC 93-343
C and S [1998] FamCA 66

APPLICANT: Ms Wickham

RESPONDENT: Mr Jones

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: LNC 72 of 2008

DATE DELIVERED: 27 February 2012

PLACE DELIVERED: Launceston

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 27 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A Trezise

SOLICITOR FOR THE APPLICANT: Andrea Trezise Barrister & Solicitor

COUNSEL FOR THE RESPONDENT: Mr P Welch

SOLICITOR FOR THE RESPONDENT: Philip Welch Barrister & Solicitor

Orders

1. The mother’s application for orders to enable interim relocation of the child E born May 1999 (“E”) is dismissed.

   IT IS NOTED

2. The orders that the father and mother have equal shared parental responsibility for L born September 1995 (“L”) and E remain in place in accordance with the order made by this court on 17 November 2006.

   IT IS FURTHER ORDERED

3. Orders in regard to L living with either one or other parent or spending time with one or other parent be suspended AND IT IS FURTHER NOTED L is currently living with the father in the Launceston area.

4. Both parties do all acts and sign all documents to ensure that E is enrolled at Z School.

5. 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.

6. The application for a recovery order be adjourned generally, and leave be given for this application to be relisted before me on the giving of twenty four (24) hours notice.

7. The hearing of these proceedings be expedited.

8. A report is to be prepared by a Family Consultant nominated by the Manager, Child Dispute Services in relation to the relationship with the child E, her parents and her siblings and the broader families and for the family consultant to provide in the report the views of both E and L in relation to the parenting arrangements.

9. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents.

10. The Family Consultant has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.

11. The parties shall attend and ensure the child attend all necessary appointments for the preparation of the Family Report.

12. The interests, in these proceedings, of the child E born May 1999, be independently represented by a lawyer and it is requested that Legal Aid Commission Tasmania arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Hobart.

13. Forthwith upon appointment by the said Legal Aid Commission of Tasmania or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

14. Within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

15. Leave be given to the parties to issue subpoenas.

    IT IS FURTHER ORDERED

16. These proceedings be listed for a Registrar’s Directions Hearing at 11.00am on
    9 May 2012.

17. Leave be given to the parties to have the matter relisted before me once the family report has issued for the purpose of directions for hearing and allocating a hearing date.

18. Costs of the parties be reserved.

    IT IS DIRECTED

19. A copy of the reasons for these orders be taken out and placed on the court file.

20. Each of the parties file a copy of their respective affidavit material to the Independent Children’s Lawyer when appointed.

    IT IS CERTIFIED

21. 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 by this Court under the pseudonym Wickham & Jones has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER: LNC 72 of 2008

Ms Wickham

Applicant

And

Mr Jones

Respondent

REASONS FOR JUDGMENT

1. These are the continuation of proceedings between Ms Wickham and Mr Jones.  The current proceedings before me are, in essence, an application for interim orders enabling the mother to confirm a relocation of the child E from the Launceston area in Tasmania to Newcastle in New South Wales.  That application is opposed.  It is apposite to look at the background of this matter, and I am required to do so in any event, having regard to the principles set out in Goode & Goode.[1]   

   [1] (2006) FLC 93-286.

2. The father is aged 51, the mother is aged 44.  They commenced living together in 1985, married in 1986 and separated in the second half of 2003.  Their marriage was the subject of an order for divorce in January 2005.  There are two children of their relationship:  L, aged 16 and a half, and E, aged 12, but who will celebrate her 13^th birthday in the middle of May of this year. 

3. The parties have been involved in lengthy proceedings in the Family Court initially with regard to property and parenting, and then to parenting.  On 17 November 2006, an order was made after a defended hearing that the parents have equal shared parental responsibility for the children and that the children live primarily with the mother, but that the children spend significant and substantial time with the father, albeit that the orders used the words “live with” rather than “spend time”. 

4. There was a subsequent set of proceedings in 2010 seeking to change the orders of 2006, and that did not bring about a change.  As one would imagine, the circumstances of each of the parties has changed significantly over the years.  The mother married Mr W in May 2005, and there are two children of that marriage.  M and N, aged 6 and 4 respectively.  The father has repartnered with Ms S who has one child, Y, aged 14 and another child, T aged 12.

5. It can be said that the parties have been engaged in hostile, acrimonious litigation for many years, and it impacted and it has coloured the upbringing of their children, L and E.  L, in November 2010, decided he wanted to live with the father full-time, and that arrangement was put into effect without the need of an order.  That lasted until about February 2011, when L began spending half the time with his mother and half the time with his father.  Each of the parties gives their descriptions about how this occurred, and it is not surprising that there is a significant issue of fact in that regard. 

6. It is also not in issue that E has lived primarily with her mother for the whole of her life.  It is not in issue that she has a close relationship with her mother;  her father, with whom she spends significant and substantial time;  her brother;  and I am satisfied that she has a close relationship with her younger sisters. 

7. The mother is a professionally qualified person who has worked in Tasmania for quite a number of years.  Her evidence is that the circumstances of the business in which she was involved changed in about July 2011 and that she commenced, soon after that time, looking for alternatives and began to engage in negotiations with the father.  The father denies this and says that first notice he received about the significant change and a proposed change of residence was in late August or early September 2011 when his stepdaughter Y reported something from school.  There is clearly an issue of fact in relation to that.  However, a meeting was convened in or about 23 September 2011.

8. At that meeting the father deposes that he indicated that he opposed the move to Newcastle.  The mother said, in paragraph 14 of her second affidavit[2], that “the father refused to listen … and insisted that there was no need for us” which I take to be the mother and Mr W and the family “to move as there was sufficient work in Tasmania”.[3]  It is clear that at that time the father, at the very least had not agreed to the children being relocated and possibly opposed the relocation, although that will be a matter of finding of fact later on.

   [2] Filed 24 February 2012.

   [3] Ibid.

9. A few days later an email was sent by Mr W to the father about the proposed changes to the children’s living arrangements.  On 26 October the father responded saying that he did not agree to any change in the children’s living arrangements.  As one notes in relation to a high conflict case such as this, there are differing views from both the mother and the father about what happened thereafter. 

10. The mother informed the father, through a letter, dated 25 October 2011, from her solicitor, that she was proposing to move to Newcastle, and the mother deposed that she had bought a home in Newcastle in October 2011, although the date of this purchase is not set out in any affidavits.  The mother apparently informed the school that the children were attending that the children would not be re-enrolling in 2012.  The mother moved to Newcastle and commenced her new job in January 2012.  The two children eventually went with her, although L has now returned to live in Tasmania.

11. The father seeks orders insofar as E is concerned to restore the status quo as it was, that is that E resides in Tasmania with the mother and spends significant and substantial time with him.  The mother proposes that E be permitted, on an interim basis, to move to Newcastle and spend a limited time in New South Wales during school time and some part of the New South Wales school holidays with the father in Tasmania. 

12. The law in relation to parenting is well settled. I am required to have regard to the objectives and principles set out in s 60B of the Family Law Act 1975 (Cth) (“the Act”), and I do not intend to repeat those here but to say that I have regard to those principles. I am required to consider in this case, as both parties are seeking equal shared parental responsibility which is, in essence, not a change with regard to the parental responsibility aspect, significant and substantial time, and equal time.

13. I am to have regard to the facts set out under s 60CC(2), (3), (4) and (4A) of the Act and I intend to do so. I am assisted by counsel who referred me to a number of decided cases, the most recent of which is Morgan & Miles [2007] FLC 93-343 where her Honour Justice Boland set out in paragraph 80 of her reasons the exposition of the four principles. That is:-

    (a) that a child’s best interest remain the paramount but not sole consideration;

    (b) that a parent wishing to move does not need to demonstrate compelling reasons; 

    (c) that a judicial officer must consider all proposals and may, himself or herself, be required to formulate proposals in the child’s best interests;

    (d) the child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement.

14. I am also conscious of the comments made by her Honour in paragraph 88 in those reasons where she said, and I quote:-

    It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis.  It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.

15. Her Honour had earlier referred to the comments of Warnick J in C and S [1998] FamCA 66 in paragraph 27 of Morgan & Miles (supra) when she quoted the following from his Honour, with whom Ellis and Lindenmeyer JJ agreed:- 

    In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a relocation, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents from what it or they had been immediately beforehand.

16. The impact of a change in residence of the child from Launceston to Newcastle will be profound in terms of her relationship with her father and in terms of her relationship with her brother, albeit that her brother has adopted, nor unsurprisingly in the context of the conflict between these parents, a somewhat changeable approach.  There are of course also the relationships between the child, her mother, her father, her younger sisters and the significant others in each of the lives of her parents.

17. There is no doubt a benefit in this child having a meaningful relationship with both her parents.  I despair for both of these children in terms of being protected from the conflict that exists between their parents.  Any reasoned or reasonable way that could have been avoided by the parents over the years has dissipated with the ongoing litigation by one, both or the other.  They are not, however, likely to be the subject of abuse, neglect or family violence in the care of either of them.

18. In terms of the child’s view, I am provided with evidence by the mother that the child has expressed a view that she wishes to relocate and that she has settled into the relocation.  I give some weight, but not significant weight, but not overwhelming weight to this evidence for a number of reasons.  Firstly, this is evidence provided by the mother in support of her subjective view that there ought to be a relocation.  Secondly, the mother deposes that L had wanted to move and that L has come back.  I do not know why L has come back.  I cannot make any findings one way or the other.

19. I have evidence that E is aged 12, almost 13 and that at some stage her views will need to be taken into account and will be quite significant, bearing in mind those concerns I intend to order an urgent family report so that the views of E can be ascertained and also bearing in mind that a request for legal aid may be made for the appointment of an Independent Children’s Lawyer to represent the interests of the children.  I do not at this stage intend to have that Independent Children’s Lawyer represent the interests of L.  It appears that he is of an age where his views would become clear and there appears to be no real issue as to where he lives.  L will live where L decides to live. I am concerned that a 16 and a half year old boy exercise such great powers absent support of his parents.

20. It is clear that E has a close relationship with both her mother and her father.  It is clear that she has been in her mother’s primary care for most of her life.  It is not an issue that there is a close relationship with the father, her brother or her younger siblings.  There is an issue about the nature of her relationship with the siblings of the Jones extended family, although that will no doubt come out in the family report.  There is evidence that E has family close in New South Wales and that E has family close in Tasmania.

21. Each party asserts that they are willing and have the ability to facilitate and encourage a close and caring relationship between E, her other parent and broader family and each party asserts the other party does not promote that relationship.  The mother asserts the father has been abusive, controlling and manipulative in terms of his communication with the children generally and his communication particularly with regard to the proposed relocation.

22. The father says that the mother does not promote a relationship between the children and particularly E and him.  He says this shows in the different orders that she is seeking which on their face, if implemented, as being that E has little to do with her brother except for some school periods and that she would only see her father once in New South Wales.  I do not know what the effect of the changes in the child’s circumstances will be, and that is probably one of the most concerning aspects of this matter.  I do not know how well, or if at all, the child has settled into school and what her circumstances were in relation to school in Launceston.  I do not know what the impact on her separation from her brother on a broader sense would be, notwithstanding their separation over Christmas 2010 and 2011.

23. I do not know how it will impact upon her in terms of her separation from her siblings.  I do not know what the clear attitude of the mother is in relation to a failure in her application.  Her affidavit is filed.  Her submissions from her counsel are that the mother is likely to remain in the Newcastle area.  I do not know, and the facts are not in, as to whether there are employment opportunities for the mother in Tasmania, far greater than that which she would assert, or as she asserts.  I do not know what the employment opportunities are for Mr W in Tasmania or in Newcastle.  The affidavit evidence is that he is looking for work.  There is a practical difficulty in the children having a relationship with each of their parents and their siblings with the relocation to Newcastle.

24. In terms of the capacity of the parents, the mother and father each have shown as a capacity to meet the physical needs of the children.  There are issues about their capacity to meet their emotional needs, bearing in mind the conflict.  The child we are talking about is a mature child.  She is almost 13 and I have had regard to that.  I am concerned about the mother’s attitude in terms of this reconciliation.  I am equally concerned about the father’s attitude.  It is clear that the mother had determined to relocate by sometime in October 2011.  She had purchased a home, or negotiated the purchase of a home.  She was not wanting to negotiate about whether she went to Newcastle or not.  The negotiation was how that should occur.

25. Each of them stood back and took no steps.  The father was aware that the mother was proposing to relocate in October 2011.  The mother had taken employment in the absence of a court order, enabling her to relocate or enabling the child to relocate.  These are not parties who are strangers to this Court.  They have been here quite often and are regular customers of this Court. 

26. I do not know the status of the child in terms of her school from last year or her school this year.  The mother’s determination to relocate was a unilateral determination.  There was a requirement on the mother to consult and make a genuine effort to agree about the change.  I have no doubt that the mother was endeavouring to negotiate but she was not endeavouring to negotiate whether there ought to be a move.  It is clear from the mother’s evidence that she had made up her mind and was endeavouring, as I said earlier, to put in place a move where a unilateral move was not permitted under the order.  Notwithstanding, she did so in any event.  It may well be that after a final hearing that this is a matter where there ought to be a relocation.  It may well be that it, in the long term, is in the best interests of this child to live in Newcastle as asserted by the mother.  That ought not to have been dealt with on limited affidavit evidence by way of an interim hearing. 

1. Even the way the affidavit material came before me outlined the difficulties in this matter.  The mother filed an initiating application on 7 February 2012 and relied upon her affidavit filed the same day.  The father promptly filed a response on 17 February together with an affidavit in-reply.  The mother sought to respond to the material and filed two affidavits on either 23 or 24 February 2012.  I have had regard to all of that material but it is only untested material in circumstances where I do not know what the findings of fact will be or ought to be.  This is the matter which needs to be determined by way of a final hearing and the child should remain in Launceston pending the application of that final hearing.

2. This being a matter of significant conflict and the third time that it has come on for a hearing in this Court, I do not intend to transfer it to the Federal Magistrates Court at this stage.  I do intend to keep it in this Court and I intend to put in place some case management processes and I intend to make an order expedited the hearing of it.  As I have indicated during the course of argument, I do not intend to undertake the final hearing of this matter.  I intend to try and find a judicial officer in my Court that can hear it promptly.  To that end, I will be directing that a family report be urgently prepared, that an independent children’s lawyer be appointed and bring the matter back to me as soon as practicable and once it comes back to me with all of the evidence in place, I will then list the matter for hearing before a judicial officer as soon as practicable.

3. In terms of L, I will not make any parenting orders until such time as I have a family report so I can understand what is going on in his life, as the family report will set that out.  I do intend to leave in place the orders that each of the parents have equal shared parental responsibility.  I do intend to suspend the parenting orders with regard to L. 

4. So that the parties understand where I am going with this, I do not know what the outcome of this matter will be and I will not be the determiner of the outcome of this matter but I would hope to have a family report by mid-May.  I assume that if appointments were made, there would be appointments probably in April some time or early May.  The family report would come out and I would endeavour to get a judge here in, hopefully within six or eight weeks of that time, to have a final hearing.  I imagine there may need to be some subpoenas issued.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 27 February 2012.

Associate:     

Date:              27 February 2012