ZELENTSOV & LEONID

[2009] FamCA 863

FAMILY COURT OF AUSTRALIA

ZELENTSOV & LEONID [2009] FamCA 863

FAMILY LAW – CHILDREN – Interim relocation application – Where mother claims the need to relocate following separation from her new partner and emergency accommodation no longer available – Whether the mother would have greater capacity to look after the child if able to relocate – Where father is located in New Zealand but is pursuing time with the child on a more frequent basis – HELD – Interim relocation application granted

Family Law Act 1975 (Cth) ss 60CC(1), 60CC(2), 60CC(3)

Goode & Goode [2006] FamCA 1346
McCall & Clark [2009] FamCAFC 92

APPLICANT: Mr Zelentsov

RESPONDENT: Ms Leonid

INDEPENDENT CHILDREN’S LAWYER: Mr Stagg

FILE NUMBER: CAC 463 of 2009

DATE DELIVERED: 29 June 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 29 June 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms White

SOLICITOR FOR THE RESPONDENT: Mrs Yeend

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Stagg

Orders

1. Ms Leonid, the mother in these proceedings, be permitted to move with K (“the child”), born in New Zealand on … November 1999, away from Canberra to Melbourne.

2. The mother will inform her solicitor and the Independent Children’s Lawyer and the Court in writing at all times of her current address, her landline telephone number and her mobile phone number and if she should change any of these she will advise the relevant persons referred to above in writing within 24 hours of any change.

3. The PACE Alert List orders made by me on 23 March 2009 remain in place and will remain in place at least until completion of these proceedings or upon 31 December 2009, at which time the order may be otherwise varied or extended by me.

4. Each of the parties’ lawyers will communicate with the Family Consultant, Ms M, as soon as practicable for the purposes of instituting the proceedings set out in previous orders of this Court to enable a restoration of communication between the child and her father. 

5. Noting that the address at which the mother is to be living in Melbourne has been revealed in these proceedings, the father be and is hereby restrained from attending at F Street, N, Victoria, or from being in one kilometre of that residence, without further order of this Court and is restrained from communicating with the mother at that address until further order.  This is an injunction imposed for the personal protection of the mother and a police officer who believes on reasonable grounds that the applicant has breached the injunction may arrest the applicant without warrant.  I note that I make this order without determining all issues between the parties relating to the allegations of violence that it is asserted that the father has visited upon the mother. 

6. Order 5 is made on an interim basis.

7. Otherwise the proceedings will return before me on 21 September 2009 at 9.30 am for further hearing to once the proceedings before Dr H have been completed.  This hearing will enable any further directions to be made about the filing of any further material before the finalisation of the matter.  This hearing will occur via telephone or video conferencing technology, the arrangements for which my Chambers Staff will notify the parties about prior to that date.

IT IS NOTED:

1. The matter will likely proceed to final hearing on 26 and 27 October 2009 commencing at 10.00 am.  The parties will be in a position to inform the Court at the next directions hearing on 21 September 2009 as to who will be Counsel for each of the parties and if the matter can proceed as scheduled on those dates.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 463 of 2009

MR ZELENTSOV

Applicant

And

MS LEONID

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these proceedings, the matter before the Court relates to an application by the father in relation to his spending time with his daughter, K.  Those proceedings have taken various steps towards finalisation and I had indicated to the parties that finalisation might occur in October 2009 provided all other matters had been properly completed.  Part of the preliminary matters involved an interview with Dr H, a single expert witness who has been presented with terms of reference.  I understand those interviews will occur soon and we expect that they will be finalised well in advance of the time at which the matter might be ready for finalisation.

2. In addition, I have made certain interim orders which provided a basis upon which in collaboration with the family consultant, Ms M, the child might begin to have some form of time with her father.  This was on the basis that the father would have supervised time through the D changeover and contact centre which was the explicitly chosen centre in the orders that I made on 24 March 2009. 

3. The process that was discussed in Court with the family consultant and made subject to my orders on that day involved some initial counselling between the child and Ms M, some telephone contact between her and her father and then, subject to all of those things proceeding satisfactorily, to some supervised time at D Child & Family Centre on the basis ultimately of about once a month.  That process has not yet happened either because of confusion or because of a breakdown in communications or possibly because the organisations involved have not had the requisite time to deal with the matter.  I am not quite certain what that is, but I am hopeful that can be rectified sooner rather than later. 

Interim relocation application

1. Current proceedings before me, however, are an application in a case, and I have given leave for the filing in court today of an affidavit by the mother.  In that affidavit she deposes to the fact that the relationship with Mr A which had brought her to Canberra initially has broken down and, in her opinion, is irreconcilable.  She deposes to the fact that she has part-time employment only in Canberra with limited financial returns of $350 a week and has been forced to live in emergency accommodation provided by the Church, for which she pays rent at $68 a week.  That accommodation is scheduled to finish on 3 July 2009 and she then says that she has been unable to find any other accommodation (with her daughters) she can afford and has nowhere else in Canberra to live. 

2. Fortuitously for her it seems, her sister has decided to move from New Zealand to join her sister’s husband in Melbourne and her sister, Ms O Leonid, and her two children have moved to Australia very recently, within the last few days, to live in a house in Melbourne with her husband.  Her sister offers accommodation, (presumably on a temporary basis at this point) for the mother and her children.  In addition, the mother deposes to the fact that she is able to obtain a full-time position in Melbourne equivalent to her current part-time position in Canberra with the Melbourne equivalent of her Canberra employer.  She deposes to her having a network of friends in Melbourne she does not have in Canberra.  I express a measure of cynicism about some of these factors.  Ms White opined that this was a fairly substantial piece of evidence about the facts that this was different from what had been said originally about the many benefits that the mother and her family enjoys by residing in Canberra and were the reasons for her not wishing to return to New Zealand.  I accept that the best light is being shone on the current circumstances by each of the parties in each case.  But there is no doubt that in the past it was said by the mother that Canberra was a place in which she should live because she was firmly established and stable and had a network of friends and all the positive things that went with it. 

3. Nevertheless, I am faced with a reality of either adopting the somewhat cynical approach (and I say cynical with just cause I think) suggested by Ms White that she should be obliged to stay in Canberra because that will be important for her client and for the child.  I do not deny that.  But not too many people in Canberra these days try and provide rent and support two children and themselves out of an income of $350 a week.  I am satisfied there is no alternative method for supplementing that income at the present point.  I did provide an opportunity to the father through his counsel to indicate what he thought might be an appropriate arrangement.  I note it did not include any suggestion of any financial support from him. 

4. In these circumstances there are certain practical questions that need to be resolved.  It is not just a question of fairness to the parties.  It is a question (as Mr Stagg so succinctly suggested) of what is best in the proceedings for the child, not for either of the parents.  There are few disadvantages in fact to the father in the mother’s move to Melbourne, except for any suggestion that the proceedings might be transferred from here to Melbourne and therefore lose some level of priority.  That is not the mother's application and I accept that is her intention at the present point; that the proceedings will remain in Canberra.  That will involve her in travel and difficulty, but that in part is the price that needs to be paid for the process.  I accept also Mr Stagg's realistic analysis of the possible difficulty associated with her and the child attending upon Dr H.  I think he is right in that the differences are a matter of a few dollars rather than significant sums of money and in fact to some extent it will be an advantage to the father to travel to Sydney from New Zealand rather than to Canberra. 

Moving forward to finalisation

1. The process of what will now take place in the future is obviously somewhat hazy. When the matter was first before me and I started to make preparations for the matter to come on for a finalised hearing the mother was settled in a relationship in Canberra which she expected to move into a marriage. She had a network of friends; she had a home; and she had a job. She had prospects of finalising the recognition of her qualifications in Canberra. None of those things has so far eventuated or none is any longer in prospect and we are really back to starting all over again, so far as the future. Nevertheless, in this matter I am obliged to put the child's interests as my paramount consideration. While these are interim proceedings, I am not relieved from the obligation to deal with the matters referred to as the primary and additional considerations in determining the best interests of the child, set out in s 60CC of the Family Law Act 1975 (Cth) and which were carefully discussed by the Full Court in Goode & Goode.[1] 

   [1] Goode & Goode [2006] FamCA 1346.

2. In this connexion, there is no argument at the present point that the primary responsibility for the child’s care must remain with her mother.  There is no suggestion other than that the mother should have primary parental responsibility for the child’s care, welfare and development.  I am to take account of the primary and additional considerations which the Family Law Act 1975 (Cth) prescribes as being important for a determination of what is in the child’s best interests.[2] These include the benefit to the child of having a meaningful relationship with both of the child’s parents,[3] and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[4]  There is no suggestion that by moving to Melbourne she would be subjected to any lack of safety or would be exposed to any danger or abuse. 

   [2] Family Law Act 1975 (Cth) s 60CC(1).

   [3] Family Law Act 1975 (Cth) s 60CC(2)(a).

   [4] Family Law Act 1975 (Cth) s 60CC(2)(b).

3. The benefit to her of having a relationship with her father is really the subject of the proceedings before this court on a final basis.  At the moment there is no relationship between her and her father.  The reasons for that are debated between the parents at some length.  I will not go into the details of the past allegations relating to abuse and to issues of violence.  However, there is no suggestion at the present point that if she were to remain in Canberra or go to Melbourne that either of those would necessarily advance her relationship with her father in the context of the processes that have already been put in place to enable a resumption of the relationship to occur continue to happen in Canberra, as is suggested.

4. I emphasise again that the words in s 60CC(2)(a) of the Family Law Act 1975 (Cth) include the words "the benefit to the child of having a meaningful relationship."  It may be feasible for a child to have a relationship with a parent but that he or she may derive no benefit from it.[5]  That is one of the issues that I am obliged to discuss and to resolve in due course on a final basis. 

   [5] See discussion by the Full Court of the Family Court of Australia on this issue in McCall & Clark [2009] FamCAFC 92, [122].

5. The additional matters that I am obliged to take into account in determining what is in the child’s best interests are well-known to the lawyers in these proceedings and I suspect becoming well known to the parties.  In many respects there are few of them that bear upon the proceedings that are currently before me on an interim basis.  The relationship of the child with her father will not be altered by her move to Melbourne at this point before the final hearing.[6]  Her views about what she wants to do are not in evidence before me, nor, in my opinion, would they be appropriate to be determinative of the matters that need to be dealt with by this court.[7]  The relationship of the child with each of her parents has been established well before this issue and the closeness of her relationship with her mother, as Ms White remarks on behalf of the father, is well noted in the family report. 

   [6] Family Law Act 1975 (Cth) s 60CC(3)(b)(i) refers.

   [7] Family Law Act 1975 (Cth) s 60CC(3)(a) refers.

6. The likely effect of any change in the child’s circumstances by my making an order of the sort asked for by the mother are matters that I cannot with confidence predict.[8]  I note that Mr Stagg in his addresses to me suggests that the child appears to have demonstrated resilience in the past and I think that is a fair comment, given the quite extraordinary changes that have happened in her lifetime.  Ms White would say, and I think with some justification, that this is not necessarily a good reason for her to be moving to Melbourne, but rather, that she should be encouraged to maintain the stability which was more vaunted in the earlier aspects of the mother’s application to the Court.  There is some force to that argument, but I am still obliged to consider the practical questions of how either parent can contribute to providing for the needs of the child, including her emotional and intellectual needs.[9] 

   [8] Family Law Act 1975 (Cth) s 60CC(3)(d)(i) refers.

   [9] Family Law Act 1975 (Cth) s 60CC(3)(f) refers.

7. In this respect, I might add as an appropriate further fact or circumstance that I consider to be relevant under s 60CC(3)(m) of the Family Law Act 1975 (Cth) is the ability of the child’s mother properly to provide her with accommodation and with the wherewithal to live on a day-by-day basis.[10]  I note again that I have no proposal from the father as to how he might contribute to that situation. 

   [10] Family Law Act 1975 (Cth) s 60CC(3)(n) refers.

8. Issues about family violence are not relevant to the proceedings at this point[11] and I am satisfied that each of the parents is to an extent that is apparent, but not necessarily relevant to this decision, showing a responsibility towards his or her involvement as a parent of the child.[12]  In this case, I comment that the father has gone out of his way in quite extraordinary circumstances to try to maintain his relationship with his daughter.  Those will be the subject of proceedings finally before this court.

   [11] Family Law Act 1975 (Cth) s 60CC(3)(j) refers.

   [12] Family Law Act 1975 (Cth) s 60CC(4) refers.

Conclusion

1. For those reasons, therefore, it seems to me that it is appropriate at this point that I should grant on an interim basis the application of the mother to move.  I am not being naïve in talking about this on an interim basis.  The application necessarily means I think that it is improbable that even in the final proceedings the mother will finish up living in Canberra.  It is obvious that the move to Melbourne will be final even though the application is an interim one.  Nevertheless, I think it is important, as her legal advisers have obviously understood, that the proceedings should remain where they are so that, first, I as the judicial officer have had carriage of the matter since the start and have some corporate memory of the matter should remain in control of the proceedings.  Second, that the advantages of the matter being able to be heard much more quickly in Canberra than it would be anywhere else should remain.  I have advised the lawyers for the parties that they should contact Ms M tomorrow to make sure that arrangements are in place for the resumption of the proposed supervised contact and I expect the mother to cooperate in that process, as it appears she has already done and as it appears further that the father also has done.

2. I also expect the parties to cooperate in discussing the matter and providing whatever information is necessary to Dr H and I am still confident that we can proceed and finalise this matter later this year. I note, finally - and I did this before I had seen the affidavit from the mother - that she wished her address to be kept away from the father. I have inadvertently subverted that intent by seeking the address of the mother’s sister. However, I propose to impose an injunction which would prevent the father from attending at that address or in any way contacting the mother at that address. I am prepared in the circumstances to add the rider that the s 68B(1)(b)(i) of the Family Law Act 1975 (Cth) requires that this will be for the personal protection of the mother and in those circumstances if a police officer had reasonable cause to believe that there had been a breach of the injunction he could arrest the father without warrant. I make this order not because I am making any finding about things that have happened in the past, except to the extent that it is implicit in the order that I am making. I am making this order to ensure that there is every best possibility that the mother will cooperate in these proceedings and will bring this matter to a finalisation without there being further applications and further matters that need to be dealt with to preserve what she perceives as her risk from the father.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks. 

Legal Associate: 

Date:  8 September 2009.