Wilburn & Wilburn (No 2)

[2021] FCCA 813

FEDERAL CIRCUIT COURT OF AUSTRALIA

Wilburn & Wilburn (No 2) [2021] FCCA 813

File number(s):	DGC 1426 of 2018
Judgment of:	JUDGE BURCHARDT
Date of judgment:	19 April 2021
Catchwords:	FAMILY LAW – Ex tempore ruling appointing Independent Children’s Lawyer
Legislation:	Family Law Act 1975 (Cth) ss 68L(2)
Cases cited:	Wilburn & Wilburn [2019] FCCA 2131
Number of paragraphs:	30
Date of hearing:	19 April 2021
Place:	Dandenong
Counsel for the First Applicant:	Mr Wilson
Solicitor for the First Applicant:	Westminster Lawyers Pty Ltd
Solicitor for the First Respondent:	Tyler Tipping & Woods
Counsel for the First Respondent:	Mr Laidlaw

ORDERS

DGC 1426 of 2018

BETWEEN:

MS WILBURN

Applicant

AND:

MR WILBURN

Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	19 APRIL 2021

THE COURT ORDERS THAT:

1.The matter be adjourned to this Court for mention before Judge Burchardt on 27 April 2021 at 9.30 am.

2.Pursuant to s.68L(2) of the Family Law Act 1975, the interests of the children Z born in 2014, Y born in 2012 and X born in 2021 (collectively, ‘the children’) be independently represented by a lawyer, Mr Alex McCormack of McCormack & Co, AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation.

3.Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer shall file a Notice of Address for Service.

4.Within 48 hours of notification of such appointment the solicitors for the respective parties shall provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the Final Hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Wilburn & Wilburn (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
(Revised from Transcript)

JUDGE BURCHARDT:

1. In order to explain the course of action I am going to embark on, it is appropriate to set out some of the relevant history of this matter, which will take a little time.  On 23 December 2020, the mother filed an application.  It was made returnable on today’s date.  The length of that delay, of course, arose from the time of year at which it was filed and the pressures of the Court’s business. 

2. At paragraph 3 of the orders that she sought as final orders, she sought that she live with the children in metropolitan Melbourne.  In paragraph 4A, she sought that the father spend two out of three weekends with the children during term times, from Friday until Sunday, and at paragraph 7, she sought that within seven days of the date of these orders, the mother be permitted to change the children’s residence to the Suburb HH area, and in paragraph 8, that the parties do all acts and things and sign all documents required to enrol the children in the DD School in Suburb HH. 

3. She filed an affidavit contemporaneously with that application.  She deposed to there being a significant change in circumstances.  She traversed the then extant – and, indeed, still extant – orders, which provide for a three-week cycle, so to speak, with two weekends, Friday to Monday, and the third week, Thursday to Friday.  She deposed to it being difficult for her to live in Town D, and that she was spending indeed as much time as practicable in Suburb HH, both with and without the children, as circumstances made possible.  She deposed to child support being paid late or not at all, and she deposed to Y – who is now nine, having been born in 2012 – having problems at school.

4. She deposed that the children had been to an open morning at DD School in Suburb HH on 10 December 2012 with very beneficent outcomes, and at paragraphs 19 to 20, she deposed to problems of her work and the interface with how she was spending time with the children, and deposed that she had given her business away and would have proposed to have no taxable income.  At paragraph 23, she deposed that she had lost her home in Town D and that there were no opportunities to rent, although I note that although her application was filed on 23 December, she had in fact been given notice to vacate on 27 August 2020, almost four months previously, and she did not depose to any very energetic endeavours to find other accommodation.

5. This is not surprising, because she also deposed that she was living with her partner in Suburb HH, and that the father had been generally very unhelpful in his interaction with her when she had sought to make interim arrangements as to time.  She appended a substantial tranche of messages passing between the parties, and one does have to say that as a matter of impression, the father’s response is rigid and dismissive, and both parties hint more than somewhat at a preparedness to return to Court, which is perhaps not surprising given the history of the matter.

6. At paragraph 32, the mother went on to depose that she was now in a new relationship with a gentleman that had commenced in 2019, and she deposed that this was not the case in previous proceedings.  However, that is not entirely true.  An examination of the Court’s records show that there were a number of hearings in March 2019, a day in April 2019, and final orders were not made until August 2019, by which stage the relationship was already three or so months extant.  She deposed to having bought a home in Suburb HH together, and it is fair to say that her affidavit contained numerous complaints about the father in a general sense. 

7. As I have indicated, that matter was not made returnable until today because of the time of year and so on.  On 15 February 2021, although it is not the next temporal development, the father filed an application seeking a recovery order and that the children live with him in Town D.  He deposed that the mother had bought a $3.74 million house in Suburb HH in 2020 with her partner, and his affidavit material took issue with the mother’s on all fronts, including the alleged diminution or loss of the mother’s earning capacity.  In fact, he had already filed a contravention application on 29 January 2021 in which he deposed that, amongst other things, it was a matter of regret to him to have to return to Court.  That sits somewhat ill at ease with his numerous references to coming back to Court in his various text messages.  It is clear he is more than willing to litigate, as is the mother. He also filed an application seeking to have the mother dealt with for contempt in removing to Suburb HH. 

8. On 16 April 2021, the mother filed an application in the case in which a further family report from Ms A was sought.  In the supporting affidavit, the mother gives what might be thought to be three cheers for DD School in Suburb HH, and a complete absence of the same in respect to the education establishment in Town D.  She confirms the purchase of a property for $3.74 million in Suburb HH, and I note that she deposes that following the resolution of the property matters, she had $450,000 to invest, as did her current partner.  In paragraph 63, she deposed to a capacity to earn a high income.  It is worthy of note, of course, that that affidavit in support is of very recent moment. 

9. With that in mind, I turn to the history of the litigation.  The first thing to be noted is that there were six days of hearing leading up to the final orders that were eventually on 2 August 2019.  I propose to read out a number of paragraphs of that judgment, which seem to me to have some significance and on an ongoing basis.  At paragraph 47, his Honour recorded:

   The mother is proposing to move to Suburb HH with her children.  The mother intends to rent in the Suburb HH area, and stated that she is hopeful that she will eventually be in a financial position to purchase a home for the children … to reside.

10. Paragraph 49, his Honour recorded:

    She gave evidence that she has built strong friendships and work acquaintances in Melbourne.  She stated that the move to Melbourne would improve her mental and emotional wellbeing, that she would be able to socialise with friends and have deeper connections with work colleagues.

11. At paragraph 53, his Honour found:

    If she was to conduct her business through Company Q, she anticipated earning about $80,000 gross per annum, which she described in evidence as salary.  She gave evidence that her current taxable income for the year up to the end of January 2019 was about $100,000.

12. Paragraph 71, his Honour was dealing with the report of Ms A, and noted that the family consultant had recorded:

    The most important factor behind the application to relocate to Melbourne was based on her wish to work in an established office such as Company Q.

13. At paragraph 82, his Honour noted:

    The family consultant in her recommendations does not engage with the father’s concerns arising from the children moving from a regional town to Melbourne.  Whilst the family consultant makes reference to Melbourne being only 90 minutes away, no reference is made to the lifestyle change and the pressures on both parents arising from travelling with the children.

14. At paragraph 90, his Honour noted:

    The children are currently too young to express a view about their mother’s plan to relocate, or how much time they should spend with each parent.

15. I observe in passing, of course, they are now two years older so that may no longer be quite so much the case, particularly with the two elder ones.  I note that at paragraph 97, his Honour recorded both sets of the children’s grandparents are involved in the children’s lives and in their care, particularly the maternal grandparents, who depose to be willing to travel to Melbourne to assist and support their daughter and grandchildren.  I understand they live in Town OO. Paragraph 98:

    The children also have the benefit of relatives living nearby and were reported to be close to their cousins and participate in activities with them.

16. Paragraph 102, his Honour recorded:

    If the mother relocates to Melbourne with the children, this will significantly impact their father and not be in their best interests.  I do not record the move from Town D to Melbourne as being one of little consequence. 

17. At paragraph 113, his Honour recorded:

    Given the children are settled in school and kindergarten in Town D, in spending time with each parent and wider family, I do not think that a relocation to Suburb HH on the basis of the mother’s proposal is in the best interests of the children.  No meaningful or substantial submission was put on behalf of the mother to explain how her proposal could proceed.

18. Paragraph 117:

    The family consultant did not spend any length of time analysing the father’s proposal for shared care.  However, on the material before the Court, it is clear that he is working in an occupation that demands reasonably long hours, particularly on days when he has to be at the employer at about 4 am.  It will be difficult for him to assume shared care of the children in the manner that he proposes.  This is the case given that the children are still young and will be relying on him to get them ready for and take them to school and kindergarten.  He would also have to get them to after school activities and events.

19. At paragraph 119:

    The Court is of the view that the father’s proposal for shared care if no relocation was ordered is inappropriate as the nature of the father’s work and the hours required to fulfil that role may undermine his capacity to care for the children, and then create unnecessary stress for both him and the children at the time.

20. At paragraph 127, his Honour noted:

    It may be said that an order restraining the mother from relocating to Melbourne at this stage may invite a further application of circumstances if changed in relation to her relationships with business arrangements.  I note the evidence of the mother that, although she would not be happy, she would accept the decision of the Court if the Court made orders restraining relocation.

21. Now, I note in the next paragraph, his Honour had observed that the mother had spent $147,000 in legal fees to that point, with a further $20,000 to go, and I would infer has paid more since.  Paragraph 130 to 132, his Honour said:

    On the basis of the evidence before the Court, I do not accept that the mother’s proposal to relocate to Melbourne is in the children’s best interest.  The children currently have the benefits of living close to family, grandparents and cousins, and it seems that the elder children are well settled at their local school. 

    Further, I do not accept that if the mother does not move to Melbourne, she will be an unhappy person, and therefore the interests of the children will suffer as a result.  The mother, in her evidence, said that she was a positive person, and that whilst that she would not be happy if she was prevented from relocating the children to Melbourne, she would present a positive face.  She said that she would be able to shield the children from her disappointment but noted that the children would still be aware of what goes on. 

    In circumstances where the mother’s proposed reasons to relocate, being purported financial benefits, the desire to work and socialise with like-minded professionals and achieve a better work/life balance are not supported by the evidence before the Court, particularly in relation to financial benefits and work/life balance, then the reasons for the relocation fall away, to a great extent, as no other reasons were advanced for her relocation.  The Court finds that the mother’s proposed relocation is not in the best interests of the children.

22. And at paragraph 134, his Honour went on:

    I do not accept that a shared care arrangement would currently be in the best interests of the children.  The children are young and primarily attached to their mother.  I accept the father has and continues to make significant contributions to the care of children, and by any measure, he is not an absent father.

23. So that is the gravamen of relevant matters that I have been able to extract from his Honour’s judgment.  I note the matter came back twice for further no doubt tenaciously argued matters to do with what final forms of orders should be made, and on the third occasion, which was as late as 21 August, his Honour made some remarks which are also, in my view, not devoid of relevance.  Paragraph 40 to 41, his Honour observed:

    It is disappointing that two competent adults could not have agreed on these matters without the assistance and intervention of the Court.  These matters were not the subject of evidence or submissions.  The controversy regarding these issues more than likely has cost each party the equivalent of the average weekly wage to ventilate. 

    Final orders have not been made, and it now falls to the parties to conduct themselves so as to avoid further litigation, which is to their own and their children’s detriment.

24. There was, of course, an appeal from that judgment, which was heard by his Honour Strickland J on 13 March 2020, and he dismissed the application by way of appeal as having no merit.  At paragraph 3, his Honour observed:

    Although the appeal is against all of these orders, it is readily apparent from the grounds of appeal that the primary complaint of the wife relates to the injunction restraining her from relocating to residential address of the children.

25. I note that at paragraph 10, and this, after all, March last year:

    The wife operates a business as a professional and earns approximately $100,000 per annum.

26. And at paragraph 50, his Honour observed:

    As the wife concedes, there is a distinction to be drawn between an ordered directed at enjoining a parent and an order directed at the child’s residence.  The former is aptly described as a coercive order, but the latter is not.  The latter is what we have here.  The exercise of power in these circumstances is certainly not rare.

27. So that is the litigation background, admittedly painted with a relatively broad brush, bearing in mind, of course, that I have had to traverse a lot of material in the last hour and a-half in addition to the other matters I have had to hear this morning.  To my way of thinking, it is really all but impossible to avoid the conclusion, on an interim basis, at least, that the wife has simply breached the Court orders because she did not want to follow them.  She has bought a place in Melbourne halfway through last year.  She knew she would have to move out of the particular premises she was in in Town D by August of last year.  She enrolled the children in the school in Suburb HH, and she now says, well, they are there and they are happy and, in effect, that is that.  We should get Ms A’s report, which she would opine, will say that the children are very happy in Suburb HH and that is the way she wants to go.

28. The father by way of contradiction – and this is, of course, entirely consistent with the tenor of his communications more generally – says, “Obey the Court orders.  Get these children back to Town D, where they” – it is not quite clear what he proposes, save that I have got a draft minute of orders now before me which suggests that he wants the children to live with him and spend time with the mother.

29. It is readily apparent that this is a very unusual and difficult set of circumstances.  On one level of analysis, there has been no change save that the mother has unilaterally sought to impose change, and from which she desires to obtain the benefit.  On the other hand, the solution proposed by the father likewise runs completely contrary to the findings made by the trial judge.  I have given some anxious thought – and it really has been anxious – to how we should proceed, and what I am going to do is this:  I am going to appoint an Independent Children’s Lawyer, and I am going to – if at all possible – to appoint Mr McCormack in the Suburb PP region.  He is an extremely experienced, and in my experience, an invariably extremely helpful children’s representative.  This case cries out for such an appointment.  I note that there was not one in the original trial, doubtless because the parties were sufficiently resourced to fight the matter tenaciously on their own, but I am not able to form a concluded view at this stage, save that the matter is urgent.

30. I have made this extensive recitation so that what I have said can be transcribed urgently, almost certainly by tomorrow, and I am going to adjourn this matter to Tuesday next when we will have the benefit of Mr McCormack’s additional submissions.  I will give further thought to what I am going to do then.  If the operation of the extant orders requires the children to spend time with their father in between, then they should do so.  There is no reason to vary that at this stage, but I will consider this matter further on Tuesday week.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Associate:

Dated:       23 April 2021