Achun & Achun

[2021] FCCA 2058

FEDERAL CIRCUIT COURT OF AUSTRALIA

Achun & Achun [2021] FCCA 2058

File number:

MLC 4823 of 2021

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

16 August 2021

Catchwords:

FAMILY LAW – interim hearing – father sought mandatory injunction for the mother to relocate her residence from Western Australia to Melbourne – transfer of proceedings – where an independent children’s lawyer should be appointed

Legislation:

Family Law Act 1975 (Cth), ss 4, 60CA, 60CC and 65DAC

Cases cited:

Adamson & Adamson (2014) FLC ¶93-622.

Goode & Goode (2006) FLC ¶93- 286.

Re K (1994) FLC ¶92-461.

Sampson & Hartnett (No 10) (2007) FLC ¶93-350.

U v U (2002) FLC ¶93-112.

Number of paragraphs:

28

Date of hearing:

16 August 2021

Place:

Melbourne

Solicitor for the Applicant:

Hartleys Lawyers

Counsel for the Respondent:

Ms E Clark

Solicitor for the Respondent:

Victoria Legal Aid

ORDERS

MLC 4823 of 2021

BETWEEN:

MR ACHUN

Applicant

AND:

MS ACHUN

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	16 AUGUST 2021

THE COURT ORDERS THAT:

1.The Applicant Father's application for the Respondent Mother and the child X born in 2018 ("the child") to return to Melbourne from Perth is dismissed.

2.Until further order the child live with the Respondent Mother in Perth.

3.These proceedings be transferred to the Family Court of Western Australia, to be listed on a date to be advised by that registry.

4.Order 4 of 5 July 2021 is discharged.

5.The Applicant Father be permitted to communicate with the child, by Facetime or other electronic means as agreed, each Tuesday and Saturday between 6:00pm and 6:30pm Eastern Standard Time or other times as agreed, and in relation to such communication:

(a)The Respondent Mother will initiate the call;

(b)The Applicant Father will make himself available to receive the call;

(c)The Respondent Mother is permitted to terminate the call if the Applicant Father's communication with the child is inappropriate;

(d)The Respondent Mother is at liberty to use an agent or relative to facilitate the call in her place.

AND THE COURT NOTES THAT:

A.It is requested that the appointment of an Independent Children's Lawyer be determined on the first return in the Family Court of Western Australia.

B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

C.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.

D.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.

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

F.If s102NA 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 Achun & Achun is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. On this interim hearing the question is whether until further order X, (“the child”) the daughter of Mr Achun (“the Father”) and Ms Achun (“the Mother”), who is aged two and a half should live with her Mother in Melbourne or live with her Mother in Perth.  The Father seeks an order that I compel the Mother to relocate the child’s residence back to Melbourne.  In the circumstances where the child has only ever lived with her Mother, and I am not prepared to find that her Mother would remain in Perth with the child in Melbourne, that is in substance an order that the Mother relocate her residence and the child’s residence to Melbourne, and I did not understand Ms D’Angelo, solicitor for the Father to be suggesting otherwise. 

2. The Father is age 28 and is unemployed.  The Mother is aged 31 and is employed as a homemaker to the child X and, in addition, her oldest child, Y.  Y, who is the child’s sister, is now aged six, and it is common ground that Y does not spend face-to-face time with her Father, Mr B, who lives in Sydney.  The parties dispute many things, including whether they even ever lived together. 

3. The Mother’s account is that the parties had a relationship but not one of cohabiting as partners in a genuine domestic relationship, rather as lovers or boyfriend and girlfriend for about the period 2017 to 2018.  Further, on both parties’ account, whatever the relationship was, it ended prior to X’s birth in 2018.  The Father’s account is that the parties lived together as committed partners in a genuine domestic relationship from 2017 until January 2020. 

4. It is common ground that the Mother applied for child support in March 2020 and an intervention order on 12 May 2020, and then a final intervention order was made on 16 June 2020.  The Father issued proceedings on 30 April 2021.  It is common ground that the Father has not spent any time with the child since March 2020 save for a brief meeting in October 2020. 

5. It is common ground that the Mother relocated from Melbourne to Perth in February of 2021 without informing the Father of her intention to do so and without consulting him about relocating the child’s residence.  The Mother alleges a history of serious family violence at the hands of the Father during what she describes as an abusive relationship, including the child being present during family violence and present during the Father’s drunken, violent behaviour and other drunken, disruptive behaviour in her home.  The Father’s proceedings were returnable on 5 July 2021.  There was real difficulty for the Father in serving the Mother with proceedings.  The matter came before me on 5 June 2021 when the Mother was represented by the duty lawyer and contested interim orders were made. 

6. On that day I ordered that until further order the child live with the Mother, but I ordered the Mother to file material on or before 2 August 2021, and I ordered that the Father communicate with the child by FaceTime or other electronic means each Tuesday and Saturday between 6:00pm and 6.30pm Eastern Standard Time with the Father to initiate the call and the Mother to ensure that the child was available to receive the call and, further, that the Mother was to be permitted to terminate the call if the Father’s communication with the child was inappropriate. 

7. I also ordered that the parties be restrained from belittling, rebuking or otherwise denigrating the other party in the presence or hearing of the child.  I adjourned the matter to this day for an interim defended hearing.  The Mother filed material on 12 August 2021 which made in COVID-19 times the taking of instructions by the Father’s lawyers very difficult, and the Father’s lawyers were only able to obtain limited instructions.  The long and the short of it is that the Father denies having a drinking problem and denies subjecting the Mother to family violence. 

8. The Father raises the circumstances which he says indicate that the Mother is attempting to alienate him from the child and to prevent him having any meaningful relationship with the child at all.  The Father points to the circumstance that he says the Mother relocated upon the cessation of her relationship with Mr B so that her older daughter was not able to have a relationship with her father, and that he sees from his point of view the same thing happening in regard to X. 

9. He then points to the circumstance that the Mother did not tell him of her intention to move to Perth and moved not only unilaterally but secretly.  The Father puts his case on the basis that the Mother has unilaterally relocated the child’s residence away from where she usually lived and, further, that the very intention of the Mother relocating to Perth as stated at paragraph 55 of her affidavit was to get a long distance away from the Father.  Perth is on the other side of a very large country.  Short of moving overseas, the Mother could not have put more distance between the Father and his daughter. 

10. On the other hand, the relationship that the Mother describes would cause any reasonable person to contemplate moving far away from the drunken, troublesome and violent person who was imposing himself on her.  This is an interim hearing, and I must attempt to follow the guidelines in regard to Goode & Goode (2006) FLC ¶93- 286 (“Goode & Goode”) of an interim hearing as outlined at [78], [81] and [82]:

    78. The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. In this case for example, we respectfully agree with his Honour’s decision that this consideration meant it was inappropriate to apply the presumption.

    81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

    82. In an interim case that would involve the following:

    (a) identifying the competing proposals of the parties;

    (b) identifying the issues in dispute in the interim hearing;

    (c) identifying any agreed or uncontested relevant facts;

    (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

    (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

    (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

    (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

    (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

    (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

    (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

    (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

11. In terms of a settled regime being beneficial to the child, there is no settled regime where the child had any relationship with the Father since, on the Father’s account, January 2020 and on the Mother’s account March 2020. 

12. On the Mother’s case she is settled in Perth.  There are other very significant developments.  The Mother has now formed a relationship with another man and will, in December, have another child where that man who is the father of that child.  The Mother deposes to having family support, particularly centring around her uncle in Perth, and that save for her friend, Ms C, she was otherwise devoid of family support in Melbourne. 

13. In terms of the issue raised in U v U (2002) FLC ¶93-112 the Father’s case is it is simply not practical for him to contemplate moving to Perth to be able to create a life for himself in Perth, see the child and have a role in the child’s life in Perth. He may need to reconsider that in the long run following the reasons in this decision. The Father points to the circumstance that he has the support of family in and around Melbourne and none in Perth. He currently lives with family. He is unemployed.

14. However, in the circumstances where the Father is seeking that I compel the Mother to live on the opposite side of the country to where she wants to live, that raises crisply for consideration the issue of why he should remain where he wants to live and she should move.  There is no presumption in the Family Law Act1975 that a party is not to live where they wish to live.  There is somewhat of a lacunae in regard to long-term decisions relating to the welfare of a child in that if there is an order for any aspect of shared parental responsibility, then the provisions of section 65DAC apply:

    Effect of parenting order that provides for shared parental responsibility

    (1)  This section applies if, under a parenting order:

    (a)  2 or more persons are to share parental responsibility for a child; and

    (b)  the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

    (2)  The order is taken to require the decision to be made jointly by those persons.

    Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

    (3)  The order is taken to require each of those persons:

    (a)  to consult the other person in relation to the decision to be made about that issue; and

    (b)  to make a genuine effort to come to a joint decision about that issue.

    (4)  To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

15. Parental responsibility includes responsibility for making decisions about major, long-term issues, which are defined in the Family Law Act 1975 as:

    “major long-term issues”, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

    (a)  the child's education (both current and future); and

    (b)  the child's religious and cultural upbringing; and

    (c)  the child's health; and

    (d)  the child's name; and

    (e)  changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

16. However, until an order is made, section 65DAC does not apply. The underlying principles and objects of the Family Law Act1975 would apply:

    Section 60CA

    Child's best interests paramount consideration in making a parenting order

    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

    Section 60CC

    How a court determines what is in a child's best interests

    …

    Primary considerations

    (2)  The primary considerations are:

    (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

    (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

    Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

    (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

17. I am not dismissive of the Father’s concerns that the Mother’s relocation to Perth was for the purpose, or at least one of the purposes was, to put distance between himself and the child. 

18. If it is true that the events of this relationship are a repeat of the child’s older sister and the failure to have a relationship there, that would be of concern.  However, in this case almost everything is disputed, and on an interim hearing I cannot make findings.  However, not all disputed evidence has the same weight.  Nor does the fact that an allegation is disputed mean that it must be disregarded. 

19. The allegations the Mother makes of family violence are clearly articulated and I cannot dismiss those.  I am also bound to apply the law in regard to a coercive relocation order.  That law was pretty clearly set out as long ago as in Sampson & Hartnett (No 10) (2007) FLC ¶93-350 (“Sampson”) and conveniently restated in the matter of Adamson & Adamson (2014) FLC ¶93-622 (“Adamson & Adamson”) at [38]:

    38. For reasons which will also be expanded upon below, it is important to observe that this Court also said in Sampson, when discussing the application of s 65DAA:

    74. As preface to this discussion, we make the following observations. A person wishing to relocate will frequently be living in a settled environment awaiting the imprimatur of the court before moving. In other circumstances, where a move has already been made, or is planned, settled arrangements in the new location will be in place or arranged. Where the court may be ordering the return of a parent to a location in which they have lived for some time, but from which they have moved without the consent of the other party and in circumstances in which existing orders or arrangements for the other parent to spend time with the children will be rendered ineffective, there will usually be arrangements in the original location for the practicalities of life, such as accommodation, schooling and employment if relevant, which can readily be identified by the Court. If there are not, that fact would normally be a relevant consideration.

    75. To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.

    (Emphasis added)

20. In all of those circumstances, I cannot find that it is in the child’s interests to cause her Mother to dislocate her current living arrangements to relocate to Melbourne.  I simply do not have any practical way forward as to where the Mother will live with the two, and shortly three, children that she will have to care for.  The Father asks that I draw the inference from the circumstance that the Mother has previously lived in Melbourne and managed to arrange accommodation in two different suburbs in Melbourne, that she could do it again.  She may be able to or she may not. 

1. Even if she is, the issue of where she will live and the circumstances of that accommodation are simply not known to me, and in the circumstances of the Father being unemployed he is unable to have a practical solution whereby he would assist to provide accommodation or provide accommodation.  In that circumstance, I feel that the observations in Sampson  and Adamson & Adamson stand squarely in my way in the circumstances of this case of relocating the child’s and, hence, the Mother’s residence. 

2. In addition there is an application to transfer the proceedings to Perth.  There is some obvious practicalities to the proceedings being able to be more conveniently undertaken in Perth.  I note that the proceedings would likely continue by way of video link in any event.  However, it is likely that there will be more relevant witnesses in Perth rather than in Melbourne.  However, I feel that the application to transfer the proceedings is simply not properly prepared.  I propose to make some further inquiries as to the practicalities of that.

3. I will have the Court, through my Associate, make inquiries as to the practicalities of that.  The circumstances of this case where the Mother alleges that the child has been exposed to significant family violence and drunken behaviour by the Father clearly satisfy the first criterion of Re K (1994) FLC ¶92-461 (“Re K”).  It is the practice of the Victorian Legal Aid Commission at the moment to only fund the first category of Re K reasons for an Independent Children’s Lawyer appointment.  This case on its face has a number of other categories of the guidelines in Re K that would be satisfied in addition. 

4. I simply do not know whether it’s more practical for an Independent Children’s Lawyer to be appointed in Western Australia or in Victoria, but I am concerned about whether one should be appointed by my order in this Court in the circumstance where the child resides currently in Western Australia and will live there until final hearing.  I need to indicate to the parties these are interim reasons where I cannot make findings of fact, including findings of fact as to how practical it would be for the Mother to be compelled to relocate to Melbourne. 

5. In all of those circumstances, I refuse the application to relocate the child and hence the Mother.  I raised with Ms Clark the issue of varying the order that I made in July so that the obligation is on the Mother to initiate the call.  I will vary that order so that it is in those terms and I will discharge paragraph 4 of the 5 July 2021 orders and remake the order in its entirety in the same terms save that the Mother will initiate the call, and the Father will ensure that he is available to receive the call, and that there will otherwise be the same clause of the Mother being permitted to terminate the call if the Father’s communication with the child or her is inappropriate. 

6. Following the inquiries that I make, I will either relist here for mention after the appointment of the Independent Children’s Lawyer here or I will transfer the proceedings to Western Australia without a further hearing here, as that would just be using up more Legal Aid resources, depending upon what I find.  So at this point I don’t know whether the final hearing will be in Melbourne or Perth.

7. They are my reasons, and I will make those orders after making those inquiries.

8. As agreed with the parties, upon making inquiries after the delivery of ex tempore reasons, I have ascertained the best course is to transfer the proceedings to the Family Court of Western Australia, together with a request (not an order) that the issue of appointing an Independent Children’s Lawyer be considered in Perth.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:  

Dated:       31 August 2021