FAMILY COURT OF AUSTRALIA
| WILSON & JEANS | [2015] FamCA 688 |
| FAMILY LAW – PARENTING – Relocation Victoria to New South Wales. Child aged two years with health problems. Poor relationship between parents. Father’s truthfulness a significant problem. Mother permitted to relocate child. FAMILY LAW – PARENTING – Parental responsibility – parents unlikely to be able to make joint decisions. Relevance of s 65DAC. Sole parental responsibility orders. |
Evidence Act 1995 (Cth) s 142
| Family Law Act 1975 (Cth) |
| Allenby & Kimble [2012] FamCA 614; (2013) 49 Fam LR 15 Champness and Hanson [2009] FamCAFC 96 Collu and Rinaldo [2010] FamCAFC 53 Hayes v Marquis [2008] NSWCA 10 Malcher & Seares [2012] FamCA 643 McCall and Clark [2009] FamCAFC 92 MRR v GR (2010) 240 CLR 461 Roy v Sturgeon (1986) 11 Fam LR 271 Taisha & Peng & Anor [2012] FamCA 385 |
| APPLICANT: | Mr Wilson |
| RESPONDENT: | Ms Jeans |
INDEPENDENT CHILDREN’S LAWYER
| FILE NUMBER: | MLC | 8543 | of | 2014 |
| DATE DELIVERED: | 20 August 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 20, 21, 22, 23. 24 and 27 July 2015 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Hession |
| SOLICITOR FOR THE RESPONDENT: | Davison Family Lawyers |
COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER Ms Wiener
SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER Logie Smith Lanyon
Orders
That all extant parenting orders and consequential undertakings given to the Court previously are discharged.
That the mother have sole parental responsibility for B (the child) born … 2013.
That the child live with the mother.
That the mother may remove the child to live in New South Wales at C Town.
That whilst the child lives in Victoria, the father spend time with him as follows:
(a) On each Sunday and Tuesday from 9.00am to 5.00pm; and
(b) At such other times as the parties agree upon in writing.
For the purposes of all changeovers whilst the mother remains in Victoria, the parties meet and exchange the child at the McDonalds Restaurant in Suburb D.
Once the mother moves to C Town, the father spend time with the child for three consecutive days in each month (or for such further days as the parties agree) between the hours of 9.00am and 5.00pm on each of those days (unless the parties also otherwise agree to other times) and the handover of the child occur at a place to be agreed and failing agreement at the nearest contact centre.
For the purposes of paragraph (7) the mother nominate by text message, two occasions in each year that she will travel to Melbourne to partly fulfil the obligations set out in these orders.
That for the purposes of the father travelling to New South Wales, he shall give the mother a calendar of his proposed visits and the mother shall nominate two such visits where she will be responsible for the father’s return airfares and accommodation both of which she shall be at liberty to arrange.
From 1 December 2016, the…
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- WILSON & JEANS [2015] FamCA 688
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- [2015] FamCA 688
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CaseChat Overview and Summary
The court was required to determine whether to permit the mother to relocate the child to New South Wales, and in light of the parents' inability to make joint decisions, whether to make orders for sole parental responsibility for the mother, and what specific time arrangements and other orders would be in the child's best interests.
Cronin J found the father's truthfulness to be a significant problem, noting several instances of what the court considered to be malicious and unsubstantiated allegations made by the father against the mother and her family. These included claims about the mother's professional conduct and an incident involving the child and alcohol, which the court rejected on the balance of probabilities. The court also highlighted the father's dismissive and uncooperative behaviour regarding the return of the mother's car as indicative of the poor communication between the parties. Applying the principles of family law, particularly the best interests of the child and the relevance of section 65DAC of the *Family Law Act 1975* (Cth) concerning parental responsibility, the court concluded that sole parental responsibility for the mother was appropriate.
The court ordered that the mother have sole parental responsibility for the child and that the child live with her. The mother was permitted to relocate the child to New South Wales. Specific time arrangements for the father were detailed, with provisions for the child to spend time with the father both in Victoria and New South Wales, with gradual increases in overnight stays and holiday time as the child grew. The orders also included provisions for major long-term decisions, passport applications, and international travel. The Independent Children's Lawyer was discharged from the proceedings, and save for costs applications, the parties' applications were dismissed.
Orders
Orders of the court
1.
That all extant parenting orders and consequential undertakings given to the Court previously are discharged.
2.
That the mother have sole parental responsibility for B (the child) born … 2013.
3.
That the child live with the mother.
4.
That the mother may remove the child to live in New South Wales at C Town.
5.
That whilst the child lives in Victoria, the father spend time with him as follows:
(a) On each Sunday and Tuesday from 9.00am to 5.00pm; and
(b) At such other times as the parties agree upon in writing.
6.
For the purposes of all changeovers whilst the mother remains in Victoria, the parties meet and exchange the child at the McDonalds Restaurant in Suburb D.
7.
Once the mother moves to C Town, the father spend time with the child for three consecutive days in each month (or for such further days as the parties agree) between the hours of 9.00am and 5.00pm on each of those days (unless the parties also otherwise agree to other times) and the handover of the child occur at a place to be agreed and failing agreement at the nearest contact centre.
8.
For the purposes of paragraph (7) the mother nominate by text message, two occasions in each year that she will travel to Melbourne to partly fulfil the obligations set out in these orders.
9.
That for the purposes of the father travelling to New South Wales, he shall give the mother a calendar of his proposed visits and the mother shall nominate two such visits where she will be responsible for the father’s return airfares and accommodation both of which she shall be at liberty to arrange.
10.
From 1 December 2016, the time under these orders shall be varied to include one overnight time at the nomination of the father in the three consecutive days.
11.
From 1 December 2017, the time under these orders shall be varied to be overnight for the entire three consecutive days.
12.
Once the child commences school, the foregoing orders shall cease and he shall spend time with his father for five days and nights in each school holiday period with the father being responsible for the collection of the child at the commencement of the period and the mother being responsible for collecting the child from the father at the conclusion of the period. The costs of all such travel shall be at the parties own expense.
13.
For the purposes of (12) hereof if the father intends to exercise the time provided for, he shall give the mother at least 21 days notice by text message of his intention to exercise the relevant contact.
14.
Once the child commences the third year of his schooling, the father’s time shall be increased to one half of all school holidays by agreement, and failing agreement, the first half again providing that he gives at least 21 days notice of his intention to exercise such contact and the costs of all such travel shall fall upon the party doing the travelling.
15.
For the purposes of the mother’s sole parental responsibility relating to major long-term decisions concerning the child, the mother shall advise the father of any proposed major decision and give him 14 days (if practicable) notice of her desired decision and thereafter consider any proposal put by the father and upon making such final decision, notify the father accordingly.
16.
That as the mother has sole parental responsibility, the requirement for the father’s signature on any application for the issue of a passport for and in the name of the child B is dispensed with.
17.
That no more than once per year, the mother is permitted to remove the child from the Commonwealth of Australia for the purposes of a holiday providing she gives the father at least 21 days notice of the dates of travel, locations and contact details.
18.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 11 September 2015 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 25 September 2015 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.
19.
That subject to any costs application, the Independent Children’s Lawyer is discharged from the proceedings.
20.
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.
21.
That save as to issues of costs, the applications of all parties are otherwise dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In the affidavit filed by the father on 24 October 2014 and upon which he asked the Court to rely, (again prepared by his lawyer) he said (at para 3):…whilst I do not dispute that the mother obtained a degree in 2005, to the best of my knowledge she has not been employed or practised as a psychologist for at least eight years, if at all. I understand that her registration is currently under investigation in relation to alleged misconduct. (my emphasis) Leaving aside the evidentiary value of a statement that begins with “I understand” without indicating the source of the knowledge, to put that information in an affidavit when its clear meaning is that the misconduct related to the mother’s profession, was scandalous. When pressed about it, the father indicated that he should not have put it there. It was gratuitous and inappropriate because when the issue was canvassed, the father confirmed there was no evidence of any professional investigation or that the mother had done anything wrong in a professional sense. Again I find the allegation malicious. It was the father’s evidence that he attended a function with the mother and her parents at a brewery during which the maternal grandfather put the child’s dummy in alcohol and gave it to the child. In his affidavit filed on 13 March 2015 (para 34) he said that the grandfather “supplied alcoholic cider” to the child. All witnesses on the mother’s side gave evidence and all denied that any such event occurred. The grandfather was outraged by the suggestion that he would do something improper like that bearing in mind his past occupation as a school teacher. I found it disconcerting as well that the father then added that the grandfather took froth off a beer (as distinct from a cider) and gave it to the child. He went further and said that the grandfather had offered the child a beer. None of that latter evidence was before the Court in affidavit form. What was also disconcerting about this evidence was that the father asserted that the mother was holding the child at the time. He said that therefore, the mother was a “party” to this supplying of alcoholic cider. On the balance of probabilities, accepting the maternal grandfather as a plausible witness, the father’s evidence must be rejected. What compounds the problem is what he then said in his affidavit:Her denial of the events shows she is not remorseful and I fear it may happen again while the child is in her care and her parents are present. Nothing in the father’s cross-examination of the mother which was specifically targeted and well-prepared, would suggest that the factual assertion by the father in his trial affidavit had any foundation for either the event or indeed more importantly, his fear. Consistent with his allegations about alcohol consumption by the mother during breastfeeding and her drunkenness to the point of unconsciousness, this indicates an obsession which the father will not let go of. The father had a car owned by the mother and when her other car became no longer useable, she requested that he hand over the one he drove. There was correspondence between lawyers and when the handover of the child occurred, the father did not produce the car as had been indicated by his lawyer. When the mother inquired as to where it was, he was dismissive indicating that she should make inquiries of her lawyers. That was an appalling situation. The mother had the child and no idea where the car was. That particular incident epitomises the level of communication between the parties. I find that most of the problem comes from the attitude of the father towards the mother. His cross-examination of the mother and his statement in court about his hope that things would change was unrealistic in the context of his affidavit sworn in March 2015.