Worley and Worley

[2007] FamCA 258

FAMILY COURT OF AUSTRALIA

WORLEY & WORLEY [2007] FamCA 258

FAMILY LAW – CHILDREN – Relocation - Interim

APPLICANT: MRS WORLEY

RESPONDENT: MR WORLEY

FILE NUMBER: HBF 734 of 2006

DATE DELIVERED: 13 March 2007

PLACE DELIVERED: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 13 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fitzgerald

SOLICITOR FOR THE RESPONDENT: Mr McGuire

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Mr McViety

Orders

UNTIL FURTHER ORDER

1. THAT the mother be restrained from changing the residence of the children the subject of these proceedings from Tasmania without further order of this Court or without agreement between the parties.

   IT IS DIRECTED

2. THAT the mother enrol the children in a local school as soon as is reasonably practicable and at least within a period of two weeks from the date of these orders.

   IT IS FURTHER ORDERED

3. THAT the children spend time with the father each Saturday from 9.00am until 6.00pm or such other commencement time or end time as is reasonably required or recommended by the Director of the Children’s Contact Service at B or at such other place or time as is agreed in writing between the parties.

4. THAT both parties be restrained from abusing, belittling or demeaning the other in the presence or hearing of the children.

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.

   IT IS NOTED

6. THAT a residence order is in place made on 11 April 2006 and that residence ordered is not disturbed.

7. THAT the parties have agreed to the preparation of a psychological report including aspects of the family dynamics and leave be given to the parties to forward a form of that order to me in Chambers through the Independent Children’s Lawyer rather than attend before a Registrar of this Court.

8. THAT leave has been given for the parties to have the matter re-listed before me on short notice in order dated 15 February 2007.

   IT IS FURTHER ORDERED

9. THAT

   these proceedings be adjourned for further mention at 10.00am on

   
   

   7 May 2007 in Launceston.

   IT IS FURTHER DIRECTED

10. THAT a copy of the reasons for these orders be taken out and placed on the court file.

    IT IS CERTIFIED

11. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 734  of 2006

MRS WORLEY

Applicant

And

MR WORLEY

Respondent

REASONS FOR JUDGMENT  

1. This is a less-adversarial hearing pursuant to division 12A of Part VII of the Family Law Act.

2. This matter came before me in February of this year and was adjourned to today so that both parties could consider their positions with regard to interim parenting and in two particulars:  (1) whether the mother ought to be permitted to relocate the children to Queensland pending the outcome of these proceedings and (2) whether in Queensland or Tasmania, what time the children should spend with their father.

3. The matter relates to three children:  M, (aged 11), E, (aged eight) and K (aged six and a half).

4. This matter has been in this court since April 2006 and on 11 April 2006 an order was made by consent that the three children live with the mother; that the parties continue to share responsibility for day-to-day care, welfare and development of the children, which I take to be a continuation of the arrangements under section 61C of the Family Law Act, and that the father have contact with the children in Melbourne at times agreed on Thursday, 13 April, until Saturday, 22 April.

5. Since that time the parties have given consent for the proceedings to be dealt with under provision 12A and the circumstances of the parties have changed considerably. 

6. Firstly the home in which the mother resides has been sold.  The mother travelled with the children to Queensland at Christmas for a holiday and then decided to remain in Queensland.

7. This decision was taken without the father's consent.  The mother currently lives in crisis accommodation in B and the children have enrolled in school this year in Queensland and are currently undergoing home schooling.

8. There are serious allegations made by the parties each against the other, but primarily by the mother against the father in relation to his behaviour since his return to Tasmania and her fears and that of the children and allegations of abuse.

9. The nature of these proceedings is that I should make findings of fact on an interim hearing, although I must have regard to them on an untested basis.

10. The mother is endeavouring to flee from what she regards as an untenable position. 

11. There is no issue that the mother has been the primary carer of the children since separation.  There seems to be an issue as to who was the primary carer prior to separation, although that will no doubt be determined on the trial.  But until late last year, until the second half of last year, the mother lived in north-west Tasmania and the father lived in Melbourne.

12. The mother says that she has no employment in Tasmania, no support network, and no child support apart from the minimum payment.

13. The relationship between the children and the father, if it has not broken down, is significantly circumscribed at this time.  The children have seen the independent children's lawyer who has expressed some of their views, which are not to the extent of the concerns expressed by the mother.

14. There is a police family violence order, which is a determination made by a police officer and is not a finding, although that is not to detract from what is said in the mother's affidavit.

15. My task is to identify the competing proposals of the parties.  It is not open for the father to argue at this stage that the children should live with him.  He consented to an interim order last year that the children live with the mother pending finalisation of these proceedings and there is nothing before me which suggests that that should change to that consent interim arrangement.

16. There is an issue as to whether the mother should be allowed to relocate to Queensland prior to the finalisation of these proceedings which are likely to take place in August 2007 at the earliest or it could take place in November 2007.

17. In any event, the father seeks significant orders with the children which would mean that there would be a change of residence between now and the hearing.

18. On the evidence of both parties is that the children should spend time with their father.  It is how that is done so that they are safe and the relationship continues which is the real challenge in what is essentially a band‑aid solution.

19. So the issues are relocation to Queensland and the time the father spends with the children.

20. I am obliged to have regard to the matters set out under section 60CC in determining both the question of the time that the children spend with the father and the other questions.

21. I do not have to make a finding under section 61DA with regard to equal shared parental responsibility for a number of reasons; the first of which is that an interim order has been put in place pending the outcome of these proceedings and it would seem to me that the intent of the legislation is not to put aside a consent arrangement that the parties had arranged in the shadow of the litigation.

22. In any event this is a matter where under section 61DA(2) there are reasonable grounds to believe that a parent of the child has engaged in family violence in the very broad and wide definition given to that word.

23. That is not to mean that I have made a finding as to family violence.  It simply means that there are reasonable grounds to believe that a parent has engaged in family violence, and in that regard I refer to the matters set out in the mother's affidavit with respect to the father.

24. In terms of the benefit of the children having a meaningful relationship with both parents, the children do have a meaningful relationship with their mother and it was somewhat comforting to hear the submissions by the independent children's lawyer and to note the insights that he had in relation to the children, their relationship with each other and the gifted nature of these children, which as I look to both parents they both shone when they heard him say nice things about their children.  That is a credit to both of them.

25. But they clearly have a meaningful relationship with their mother.  The relationship with their father at the present time is problematic and it is how that is dealt with which is one of the challenges that this court will have to deal with and the parties will have to deal with.

26. The need to protect the children from physical or psychological harm or being subjected or exposed to abuse, neglect or family violence.  The use of words and threats and abuse, if proved, amount to family violence.  People do not, and should not, be subject to abuse.

27. Whether that comes up to proof or not does not matter but there are indications in this case which cause some concern.  In respect of the views expressed by the children there is some material before me.  I do not know that I can attach much weight to it in the form as it is presented.  It would be far better if it was presented in the form of a psychological report or family report which will no doubt happen in the future.

28. As to the nature of the relationship of the children with each parent, I have spoken of that factor above and I note the children have a close, loving bond between each other.

29. As to "The willingness of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent":  this litigation has become particularly difficult for the parties over the last two or three months.  The conflict between them has intensified and each have gone back into their bunkers and as a consequence their willingness and ability to facilitate and encourage a relationship between the children and the other is circumscribed.

30. That may well be as a consequence of actions of one against the other or whatever, but that's the situation in which the court finds itself at the present time.  The real problem is the effect of the change on the children's circumstances if I make an interim order that the children travel at this stage to Queensland and the practical difficulties and expense.

31. I say now that I do not intend to allow the mother to return to Queensland, at this time.  That is not a reason for anybody to cheer.  It may well be that when all of the evidence is heard and when all of the evidence is before the court, that is an entirely appropriate move.

32. Interim relocations - as I have no doubt Mr McGuire will have told his client - are not the easiest things for a party to achieve.  The evidence needs to be absolutely clear and on the material before me this does not fall into that category.  That does not mean that the mother will go or will not go at the final hearing .  That issue is still open for determination.

33. In terms of the capacity to parent I reiterate what I have said before.  As to family violence I reiterate what I have said above and I have not made any findings.  The family violence order:  as I have said before, it is not the order itself, it is what gives rise to the order which the court ought to consider.

34. I accept the balanced and thoughtful submissions of the independent children's lawyer.  I intend to put in place arrangements which leave the primary care of the children with the mother, but with the father seeing the children on Saturdays.

35. I direct the mother to enrol the children in local schools because whichever way this matter goes it will be until the end of the year before it is finalised in real terms. 

36. Hopefully the parties may well, after going through some of the processes, now take some time and see if there is some way this matter can be resolved without having decisions impact upon them or enforced upon them.  Judges making decisions - particularly in cases such as this - are very hard for everyone and that impacts on the children. 

I certify that the preceding 36 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Associate: 

Date:  13 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WORLEY & WORLEY