Archibald & Kayser

[2021] FCCA 982

FEDERAL CIRCUIT COURT OF AUSTRALIA

Archibald & Kayser [2021] FCCA 982

File number:

DNC 17 of 2021

Judgment of:

JUDGE YOUNG

Date of judgment:

26 March 2021

Catchwords:

FAMILY LAW – parenting – application concerning a child who is 19 months old –  whether it is in the child’s best interest to relocate his primary residence to Darwin – where the father seeks an interim mandatory injunction for the mother to relocate to Darwin with the child – where the mother has relocated the child’s primary residence to Canberra – where the mother is the primary carer of the child – where the father lives in Darwin – where the father consented to the mother’s relocation for a limited time period – where the father alleges the mother’s intention is for the relocation to be permanent – Court satisfied it is not in the child’s best interests to relocate his primary residence to Darwin on an interim basis.

Legislation:

Family Law Act 1975 (Cth) s 60CC

Cases cited:

Adamson v Adamson (2014) 51 Fam LR 626; [2014] FamCAFC 232

Oswald & Karrington (2016) 55 Fam LR 344; [2016] FamCAFC 152

Number of paragraphs:

26

Date of hearing:

26 March 2021

Place:

Darwin

Solicitor for the Applicant:

Ms Farmer of Withnalls Lawyers

Counsel for the Respondent:

Mr Allen

Solicitor for the Respondent:

Australian Family Lawyers

ORDERS

DNC 17 of 2021

BETWEEN:

MR ARCHIBALD

Applicant

AND:

MS KAYSER

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	26 MARCH 2021

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That the child live with the mother in the Australian Capital Territory.

2.That the parties are to arrange for a private Family Report to be prepared by Ms B and the costs of the Report are to be shared equally between the parties.

3.That the parties are to agree on the terms of reference for the Family Report by Ms B within 21 days of the date of this order and failing agreement the terms of reference are to be the standard terms of the Court.

4.That both parties are to enrol in a post-separation parenting course unless they have already done so and are to provide the other party with a certificate of completion.

5.That the child spend time with the father as agreed between the parties and failing agreement:

(a)In Darwin for 5 consecutive days between 9:00am and 5:00pm in each school holiday period;

(b)That for the purpose of Order 6(a) the mother provide at least 28 days’ notice to the father of the days that she intends to be in Darwin with the child and in line with the time that the father’s other child C spends time with the father in Darwin;

(c)In the event the father is in Canberra and provides the mother with 14 days’ notice of the same the child is to spend time with the father between 9:00am and 5:00pm while the father remains in Canberra; and

(d)The child’s time pursuant to Order 9(a) and (c) be in the substantial attendance of an agreed third party, and failing agreement the paternal grandmother.

6.That the mother will facilitate phone calls between the father and the child each Monday, Wednesday and Friday between 5:30pm and 7:00pm or as otherwise agreed.

7.That the mother make the child available to spend time with the paternal grandmother as agreed with the paternal grandmother and failing agreement at least once per week.

8.That the mother take all reasonable steps to facilitate regular time occurring between the child and his sibling, X.

AND IT IS ORDERED:

9.That the parties attend a Conciliation Conference with a Registrar of the Court at Darwin on 29 June 2021 at 2:00pm (NT Time).

10.That the applicant pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 at least 28 days prior to the Conciliation Conference unless otherwise exempted from payment.

11.That the Respondent reimburse the Applicant one half of the Conciliation Conference fee within 14 days thereafter.

12.That within 28 days of the date of this order the parties provide mutual informal discovery of all documents in their respective possession, custody or control.

13.That the parties prepare a draft joint statement of assets and liabilities within 28 days of the date of this order.

14.That with respect of any asset the value of which is not agreed the parties obtain a joint written valuation at their joint expense to be available within 14 days prior to the conciliation conference.

15.That in the event either party seeks a superannuation splitting order that a copy of the proposed splitting order be served upon the Trustee of the superannuation fund at least 14 days prior to the conciliation conference.

16.That in the event that valuations have not been agreed by the parties they are to notify the Registrar 14 days prior to the conciliation conference and confirm if the conference is to proceed.

17.That both parties produce to the other fourteen (14) days prior to the conciliation conference, documents as prescribed in Annexure A to this order.

18.That the matter is listed for trial on 1, 2 and 3 September 2021 at 10.00am (allowing three days).

19.That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness and updated financial statement complying with rule 15.28 of the Federal Circuit Court Rules 2001 intended to be relied upon at trial no later than 28 days prior to the trial.

20.That on or before 28 days prior to trial the applicant pay the setting down fee and such further daily hearing fee should the matter continue to day 3 and the respondent pay such further daily hearing fee on day 2 as required pursuant to the Family Law (Fees) Regulation 2012.

21.That at least 48 hours prior to trial, Counsel for each party  and the Independent Children’s Lawyer file and serve a Case Outline document which clearly identifies the following:

Parenting orders

(a)a list of the material relied upon;

(b)a brief chronology listing significant events;

(c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (section 60CC factors);

(d)a list of other contentions relevant to the decision;

(e)whether the presumption of equal shared parental responsibility applies (section 61DA), and if not the contentions relied upon;

(f)a list of the considerations relevant to considerations of equal and substantial parenting time (section 65DAA);

(g)a list of other relevant considerations (including the relevant section number) (for example, sections 60CG, 61F, 65DAB and/or 65DAC); and

(h)the actual orders sought.

Property orders

(a)a list of the material relied upon;

(b)a statement of any agreed facts;

(c)a brief chronology listing significant events;

(d)a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;

(e)main contentions in dispute as to:

(i)inclusion in the pool; and

(ii)value of assets;

(f)list of contributions claimed or contended for (including expression as a percentage);

(g)list of other factors relied upon (section 75(2) factors) and percentage adjustment contended for;

(h)other relevant contentions to determining a just and equitable division of property; and

(i)the actual orders sought.

22.That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court.

23.That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 14 days before the commencement of the hearing.

24.That in the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.

25.That the parties have liberty to apply.

AND IT IS FURTHER NOTED:

A.That 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.

B.That 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.

C.That further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.That 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 Archibald & Kayser is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an interim parenting matter about X who is 19 months old. The parties formerly lived in Canberra and moved to the Northern Territory in September 2018 to follow the mother’s employment in the Employer D. The father came here and he obtained employment in the Employer D where he is presently employed as a public servant.  His position at his current employment is not of particularly longstanding and it appears to be a middle-level management position.  The mother, in more recent years, has been pursuing a career in the Employer E. There appears to be a degree of flexibility about the location of her employment.  She is currently working on secondment within the Employer D in Canberra.

2. The background is that the parties separated in October 2020.  It is said in the material that the precipitating event was the father’s infidelity.  I explained to Mr Allen, counsel for the mother, that in itself is of no real significance.  However, I mention it because it is clear that the parties’ relationship deteriorated very rapidly after an initial period of cooperation.

3. The father, in my view, very reasonably acknowledged the mother’s distress and upset about what had happened.  It is clear to me on the materials, and it was not suggested otherwise, that the father agreed that the mother could return to Canberra with X for a period to consider her position.  The father would consider his position, remaining in Darwin, and they would then see what steps were necessary to be taken for them to get on with their lives.

4. That was a mature response to a difficult situation and I do not believe either party is to be criticised about that.  It is clear from the text message and email discussions between the parties that the mother’s relocation was to be for a period of months.

5. Initially, the mother and X lived with the father’s mother in Canberra.  She then said to the father that she was going to take out a lease and he approved.  It is unclear whether she told him that the lease she took out was a 12 month lease.  There is no evidence that she made him aware of that.  I am satisfied that the most probable interpretation of the communications between the parties is that the father thought that the move would be until, as he put it – “June, at this stage.” It appears that the parties were simply going to see how things went. 

6. In late December, the mother came back to Darwin bringing X with her. The mother’s intention of travelling to Darwin was for X to spend some time with his father.  For reasons which were somewhat unclear that did not go particularly well.  The mother expressed concerns that X may have been brought into contact with the person with whom the father had had some kind of relationship and she objected to that.

7. It seems the father also became suspicious about the mother’s intentions as she had registered her car in the Australian Capital Territory (ACT) which he considered was probably inconsistent with an intention to remain in the ACT temporarily. His suspicion was probably correct.

8. Those factors led to a breakdown in communications and the parties have not progressed matters since then.  The father said “things reached an impasse” after the father concluded, correctly, in my view, that the mother did not intend to return to Darwin. The parties attended a mediation in February 2020.  That did not resolve any progress between them. 

9. It is not in contention that the mother is the primary carer of X. Indeed, the mother says that she is still breastfeeding the child.  The father does not contend that the child should return without the mother. In fact, the father seeks a mandatory injunction on an interim basis that the mother relocate to Darwin with the child. 

10. The mother raises various objections to that.  In the mother’s affidavit she alleges that the father has some mental health problems. She implies that the child is not safe with the father and neither is she.  I am unable to reach any conclusions about that. I approach those allegations with a degree of caution because they are certainly not matters that are clearly raised in any of the text message or email communications between the parties, particularly before they engaged lawyers in January. I do not think that factor is determinative and I give the allegation very limited weight. 

11. The factors that appear to be most significant here are:

    (1)The child is very young being 19 months old;

    (2)The child is in the primary care of the mother and that is not in contest;

    (3)The nature of the order being sought by the father is a mandatory injunction for the return of the mother from Canberra to Darwin;

    (4)The father agreed to the initial relocation. However, the father’s agreement appears to have been made on the assumption that the relocation would be temporary or there was, at least, no agreement that it was to be permanent. The parties were clearly going to consider that matter.

    (5)The father acknowledged that the mother required emotional support. He acknowledged that emotional support was not available in Darwin but that it was available in Canberra from the mother’s friends and others.  It is not clear that the mother’s family live in Canberra but it is clear some of the members of the father’s family, such as his mother, live in Canberra. 

12. The father acknowledged that the mother would receive emotional support in Canberra at a time where she needed emotional support.  I give significant weight to that factor.  I accept that the separation has been emotionally traumatic for these parties. I accept, as does the father, that the mother requires emotional support which is not available to her in Darwin.

13. The matters in section 60CC(2) of the Family Law Act 1975 (Cth) (the Act) outline the primary considerations for a Court in determining what is in the child’s best interests:

    (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

14. I do not believe section 60CC(2)(b) of the Act is a factor at the moment. The primary factor to be given the greatest weight in determining the best interests of the child is the benefit of a relationship of the child with both his parents. If the mother continues to live in Canberra and the father continues to live in Darwin then the fact of the parties living far apart is likely to have a very significant negative impact on the child’s relationship with his father. This is the basis on which the father seeks the order that he does. There is nothing to suggest that the child would not benefit from such a relationship. However, as the case law makes clear, there are other factors to be taken into account, in addition to those factors in section 60CC of the Act, including a right of freedom of movement of a parent.

15. The Full Court of the Family Court in Oswald & Karrington (2016) 55 Fam LR 344 which made reference to the seminal case of Adamson & Adamson (2014) 51 Fam LR 626 emphasised at [16] that a coercive order, which is sought by the father in this case, is:

    at the extreme end of the discretionary range and there should exist “rare” and “extreme” factors that warrant the Court exercising its discretion to make a coercive order

    I accept that is the case. 

16. The Full Courts of the Family Court in those cases made clear that all other practical options ought to be considered before such an order is made.  I asked the parties whether they had had discussions about what time arrangements were to take place as an interim measure.  I was told that there had been no real discussions. 

17. However, the mother proposes that she would return to Darwin during each of the school holidays and X would spend time with his father for a period of five days during the school holidays.  Apparently, the significance of the school holidays is that the father has another school aged child who would also be spending time with the father then.

18. I do not think that such limited time spending by the child with the father is in any way adequate or appropriate.  However, I am dealing with an interim hearing.  The other factor that I take into account is how long we are likely to wait before there is a trial. In the Darwin Registry, there could be a three day trial on 1 September 2021.  Mr Allen acknowledged that that is likely the soonest trial availability that he would know of, certainly in Canberra and I suspect anywhere in the country. 

19. There is also agreement between the parties that a private Family Consultant produce a Family Report.  I was told by Ms Farmer, who appeared for the father, that the Family Consultant who was formerly based in this Registry, Ms B, and whose work is well known to this Court is available for the preparation of private Family Reports from 16 April 2021. Mr Allen had proposed a private Family Report with a different Family Consultant which would be prepared in May 2021.  Having regard to what a practicable timeline is for a three day trial commencing 1 September 2021, a Family Report prepared in April and likely released in early May is the most appropriate course of action. 

20. I consider that there is likely to be availability for a trial in a reasonably short period of time in this Registry. That is relevant to the question of transferring these proceedings to the Canberra Registry of the Federal Circuit Court. I do not propose to transfer the matter. More significantly, it is relevant to the question of the matters in section 60CC(2). The period waiting for a trial does not appear to be significantly longer than the period the father was prepared to agree to the mother relocating to Canberra with the child. That is, approximately, June 2021. The outcome that I propose to deliver will not be that dissimilar to what the father had agreed to. I consider that, in those circumstances, an order for the return of the mother to Darwin is not justified. In other words, there are other practical measures which I have just discussed which deal with the matter to some significant degree.

21. I consider that there is substance in Mr Allen’s submission that, if the Court, after trial, permitted the mother to relocate to Canberra on a permanent basis, then an interim order for mandatory injunction for the return of the mother to Darwin, which would operate in a month’s time (presumably May or early June), may well see her be forced to return to Darwin for a relatively short period.  The father says that she can live in the former matrimonial home. Presumably, he will move out.  This may see her relocating again. Mr Allen submits that there is a fair chance that this is the way things would turn out. I accept, without pre-empting the result, there is a definite possibility of that. There is also a definite possibility that that does not happen either.

1. I consider that an interim order to return to Darwin is unduly and unreasonably disruptive to the mother’s life and, indirectly, X’s life. I accept the submission that it is not in the child’s best interest to require the mother to return to Darwin on an interim basis. 

2. Having regard to each of the matters that I have discussed, and in framing these reasons, I take into account all of the matters in section 60CC(2) and (3) of the Act. The matters in section 60CC(3) do not appear to be of great significance at the moment.

3. I decline to make the orders that the father seeks.

4. I make orders until further order as follows:

   (1)The child is to live with the mother in Canberra;

   (2)The parties are to share equally in the cost of a private Family Report to be prepared by Ms B, noting that the Court was informed that Ms B would be available to begin the preparation of that report from 16 April 2021 which would be sooner than the availability of the Family Consultant proposed by the mother;

   (3)The parties are to agree on the terms of reference for the Report within 21 days of the date of these orders and if they cannot agree, the terms of reference are to be the standard terms of reference this Court uses in making an order for a Family Report;

   (4)Both parties are to enrol in a post-separation parenting course such as “Bringing Up Great Kids” unless they have already done so and the parties are to provide a certificate to the other party upon completion;

   (5)Orders about the child’s time spent with the father set out in the mother’s proposed order 9, 10, 11 and 12.

   (6)The parties are to attend a conciliation conference in relation to property issues; and

   (7)The matter will be set down for trial for three days commencing on 1 September 2021.

5. I do not propose to make any order about the father having a mental health assessment because I am not satisfied that I have power to make such an order or that it is appropriate at this stage.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       11 May 2021