Adamson and Adamson

[2013] FCCA 1228

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADAMSON & ADAMSON [2013] FCCA 1228

Catchwords:
FAMILY LAW – Children – parenting orders – relocation – recovery order – best interests of the children – where mother unilaterally relocated the residence of the children whilst proceedings pending – application for recovery order refused.

Legislation:
Family Law Act 1975 (Cth), ss.67Q, 67V

Applicant: MR ADAMSON

Respondent: MS ADAMSON

File Number: PAC 1461 of 2007

Judgment of: Judge Scarlett

Hearing date: 12 August 2013

Date of Last Submission: 12 August 2013

Delivered at: Sydney

Delivered on: 12 August 2013

REPRESENTATION

Solicitor for the Applicant: Mr Bloomberg

Solicitors for the Applicant: Blackman Legal

Solicitor for the Respondent: Mr Boyd

Solicitors for the Respondent: Boyd Lawyers

ORDERS

1. The Application for a Recovery Order under s.67Q of the Family Law Act 1975 is dismissed.

UNTIL FURTHER ORDER

1. The Respondent Mother is restrained from removing the children [X] born [in] 1999 and [Y] born [in] 2001 from outside of the Sydney metropolitan area.

2. The Respondent Mother must return the children the children [X] and [Y] to an address within the Sydney metropolitan area within fourteen (14) days.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

PAC 1461 of 2007

MR ADAMSON

Applicant

And

MS ADAMSON

Respondent

REASONS FOR JUDGMENT

1. The application before the Court is an Application in a Case seeking the issue of a recovery order under the provisions of section 67Q of the Family Law Act 1975 (Cth).

2. The application is brought by the Father and brought in circumstances where the Mother has chosen to relocate herself and the residence of the children to the [N] area from the [C] area. 

3. The background to these proceedings is that the substantive application which was filed on 26^th April 2013 sought interim and final orders restraining the Respondent from changing the children’s place of residence to a location outside of a radius of five kilometres of their current residence at [C].  What has happened is that the Mother has now unilaterally relocated whilst these proceedings are on foot. 

4. The application before the Court today is an application for a recovery order.  That is an application for an order which is, to use the words of the Watson SJ of the Family Court, for the police “to go out and arrest the children” and remove them from the care of the parent with whom they are residing.

5. The Court should not issue a recovery order unless it is satisfied under section 67V of the Family Law Act that such an order would be in the best interests of the children concerned. The section says, and I quote:

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

6. In my view the application for a recovery order is misconceived.  It would appear to me to have a traumatic effect on the children for the police to arrive, remove them from the care of the Mother in whose care they have been living since, on the evidence, either 2003 or 2004 and effectively place them down in the care of their father.  It would seem to me that such an event would be likely to have a negative effect on the children’s relationship with their father.

7. This is not to say that the Mother’s unilateral action in relocating the children away from the former address is a matter that would meet with the Court’s approval.  Whilst relocation matters are not a separate category of law, there are certain matters that the Court would take into account and it appears clear that the Respondent, in the knowledge that there were proceedings on foot seeking an order restraining her from relocating the children, has acted unilaterally to do so. 

8. The distance involved, notwithstanding the Mother’s suggestion that a changeover point could be established at a halfway area such as [omitted], will clearly affect the current parenting orders.  That does not seem to me to be in the best interests of the children.  I note that the Mother has been refused a grant of legal aid and is currently appealing against it and whilst I take that into account I am not prepared to adjourn the proceedings simply to allow that appeal to take its course.  The concern is that if the Court does not act swiftly to deal with the situation a status quo could arise which is not necessarily in the best interests of the children or the parents concerned.

9. What I propose to do, therefore, is to make an order dismissing the application for recovery order and I make orders:

   a)restraining the mother from removing the children from outside the Sydney Metropolitan Area; and

   b)requiring the mother to return the children to an address within the Sydney Metropolitan Area within 14 days.

10. I would comment that I am not persuaded that a radius of five kilometres from [C] is necessarily appropriate.  It seems to me too restricted but I am of the view that the Sydney metropolitan area is the appropriate area to be considered which, of course, excludes [N].

11. I will bring the matter back to Court in a short period of time so that I can hear further from the parties’ legal advisers as to what the situation is.  I suggest Tuesday 3^rd September for further mention at 10:00am.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  28 August 2013