Avante and Bide

[2019] FCCA 2858

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVANTE & BIDE [2019] FCCA 2858

Catchwords:
FAMILY LAW – Unilateral relocation of child aged six years from South Australia to Queensland by mother – proceedings adjourned to allow mother to file answering material – mother has failed to comply with order – parties previously agreed on arrangements for child to spend regular periods of time with father in South Australia – mother makes further application for adjournment – no answering material filed – meaningful relationship – best interests – mother directed to return child to South Australia.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Morgan & Miles [2007] FamCA 1230

Applicant: MR AVANTE

Respondent: MS BIDE

File Number: ADC 2505 of 2019

Judgment of: Judge Brown

Hearing date: 28 August 2019

Date of Last Submission: 28 August 2019

Delivered at: Adelaide

Delivered on: 28 August 2019

REPRESENTATION

Counsel for the Applicant: Ms J. Miller

Solicitors for the Applicant: Resolve Divorce Lawyers

Counsel for the Respondent: In person

Solicitors for the Respondent: Not applicable

ORDERS

1. The mother is directed to return the child X born … 2013 to South Australia no later than 6:00pm on Wednesday, 18 September 2019. 

2. In the event the mother elects to live within a 10km radius of the Suburb A Post Office pending final hearing, the child live with her and spend time with the father pursuant to the terms of the parenting agreement dated 1 November 2018. 

3. If the mother elects not to live in South Australia pending final hearing the child live with the father. 

4. The mother file and serve a Notice of Address for Service no later than close of business on Friday, 30 August 2019. 

5. Further consideration of the matter is adjourned to 11 October 2019 at 2:15pm. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2505 of 2019

MR AVANTE

Applicant

And

MS BIDE

Respondent

REASONS FOR JUDGMENT

1. This afternoon I have to deal with an application in which Mr Avante is the applicant and the respondent is Ms Bide.  The parties are the parents of a young child, X, who was born on … 2013.

2. The case concerns what lawyers commonly call a unilateral relocation case.  Australia is a very large country.  It is also a free country.  Its citizens are entitled to live where and how they choose and pursue whatever is of interest to them. 

3. At the same time, children have a right to spend time and interact regularly with those who love them.  It is, of course, the normal order of things that parents love their children, and for that reason, wish to see and interact with them regularly.

4. As a consequence, in the aftermath of parental separation, it is a very significant thing for one parent to move far away from the other parent concerned with any child of the relationship concerned.  Such moves create many considerations which must be considered. 

5. The normal legal principles dictate that those factors deserve close and careful consideration involving an assessment of the competing factors for and against the relocation.  If the parents concerned disagree about any proposed move they are therefore mandated to come to court to have the dispute adjudicated. 

6. There are many pros and cons which have to be weighed up and balanced against one another, in the case of the movement of a child a significant distance away from a parent.  On the one hand, there is the entitlement of the parent to have the freedom to live where he or she wants to.  On the other hand, children have a right to spend time with each of their parents on a regular basis. 

7. For those reasons, courts are generally unsupportive of one parent taking things into his or her own hands and moving away with any child concerned before either the parents themselves have reached an agreement, or the Court itself has decided the issue of moving, after having considered all relevant evidence, particularly what is the outcome which is in the best interests of the child concerned.

8. In this case, Mr Avante commenced proceedings on 21 June 2019.  He wanted his case fixed for urgent hearing because it was his position that, without any consultation with him, Ms Bide had moved with X far away to Queensland, and he was concerned that this would have grave implications for his relationship with X. 

9. In support of his application, he deposed that he and Ms Bide had begun a relationship in late 2010 or early 2011.  They had never married.  They lived at Town B during their relationship.  They separated on 6 January 2018.  Mr Avante moved in with his parents in Suburb A, where he continues to live, and Ms Bide and young X kept living in Town B. 

1. After the parties separated, it seems to be the case that the parties embarked on a process of mediation.  As a consequence, they were able to agree on arrangements for X’s care, which were put into a parenting plan.  I have that parenting plan, which is dated 18 November 2018. 

2. It is a relatively simple document of some four pages.  There are 15 provisions.  There are notations, one of which is, that the father indicated that, in future, he wanted to spend more time with X but had agreed on some provisional arrangements for him to spend time with the child. 

3. Essentially, during school terms, the plan provides for the father to spend time with X from after school on Friday until school recommences the following Monday, and for regular periods of time during each school holiday.

4. There are also some provisions which deal with special occasions such as Father’s Day and Mother’s Day, and the child’s birthday.  In this context, I note, of course, that X’s birthday was on … 2013.  As such, it must be the case that Mr Avante did not interact with X on his birthday, it being envisaged that there would be a period of three hours on the child’s birthday. 

5. It also is obviously that case that what was envisaged in the parenting plan simply has not come to pass because Mr Avante, on his case, which Ms Bide does not disagree about, has not interacted with the child since May because she has moved with the child to Queensland, without any prior discussion with him. 

6. From the father’s perspective, he was due to have X on the weekend of 17 to 19 May.  He got a message from Ms Bide on his phone, which was, “Don’t pick X up from school tomorrow.  We have gone on holidays.” 

7. Since that time, unbeknownst to him, Ms Bide has vacated her rental property, cancelled X’s enrolment at school, and moved.  It seems to be the case, and I think Ms Bide agrees that it is the case, that she has formed a relationship with another person.

8. As I say, from Mr Avante’s point of view, this was a situation of crisis.  He was anticipating seeing X, not only on weekends but in the middle school holidays, on the child’s birthday, and no doubt, in the next few days, on Father’s Day as well, and those arrangements were brought to an end. 

9. Ms Bide, it would seem to be the case, did not provide any information as to where exactly she was going.  Thereafter, from Mr Avante’s point of view, and the point of view of his solicitor, it has been difficult for the application to be properly served on Ms Bide. 

10. The case came into court for the first time on 29 July 2019, so that was well after Ms Bide had moved, and in this context, I will make the following observation.

11. It is invariably the case, in my experience, which is reasonably extensive, that the parent who is the one from whom the child has been taken, goes as quickly as he or she possibly can, and gets legal advice, and institutes proceedings. 

12. On the other hand, the parent who has moved, invariably has difficulty getting legal advice, does not respond promptly to applications, and most certainly does not feel inclined to institute his or her own proceedings in an attempt to justify his or her actions, and those factors are all present, sadly, in the present case.

13. When the matter came before the court for the first time, I was provided with an affidavit of attempted service by a process server from Queensland.  The process servicer was Ms C.  She deposed to having experienced difficulties, whilst she attempted to do what she had been retained to do.  The difficulties arose with an occupant of the premises where Ms Bide is apparently living. 

14. When Ms C attended at the premises in question, a male occupant was threatening toward her and indicated forcefully his view that what she was attempting to do – serve court documents on Ms Bide – was illegal.  He also denied that Ms Bide, in fact, lived at the premises.  I now know that this was not true.

15. In those circumstances I was satisfied that it was appropriate to make an order for substituted service.  Accordingly, in order to effect service, I directed that the documents be attached to the mailbox of the address in question, in Suburb D in Queensland.  Ms Bide was given the opportunity to appear on the next occasion before the court by telephone.

16. The proceedings were adjourned for about three weeks to 16 August 2019, some three months after Ms Bide had left South Australia.  Ms Bide took the opportunity to appear by telephone on the adjourned date.  She had not been able to retain a solicitor and had not filed any answering documents.

17. By that time, Ms Bide, perhaps, conceded the inevitable, that she had been served, and therefore there was no question that Mr Avante had acquiesced in her unilateral relocation of X away from South Australia.  In all these circumstances, it was clear that there was therefore a significant issue of dispute before the Court.

18. Ms Bide and I had a reasonably lengthy discussion with one another.  I attempted politely, I hope, to indicate the difficulty of her position, namely that, at first blush, it was clear that she had acted independently of Mr Avante in respect of a significant parenting issue relating to X. 

19. She told me that she had indeed initially planned to come to Queensland for a holiday.  She further told me that, since arriving in Queensland, she had discovered that her mother was unwell with arthritis.  She is apparently a person in late middle age. 

20. Ms Bide also confirmed that she had formed a relationship with a person, who lives in Queensland and this relationship is important to her.  Significantly, in my view, at this stage, she did not raise any issues or significant criticisms of Mr Avante including in respect of his conduct towards her, although I consider she was given ample opportunity to do so.

21. I say this because it is frequently the case that the person in Ms Bide’s position – attempting to retrospectively justify a unilateral parenting action – asserts that he or she had no alternative to ensure his or her safety other than to flee from an unhappy or threatening situation, involving the other parent, other than to move a significant distance away from that parent.

22. In this context, although, of course, this is an interim hearing and I cannot make concluded findings of fact, it is, I think, very significant that the parties, through a process of mediation, did agree on arrangements for X’s care.  Accordingly, this is not a case where there is a recent separation and, as a consequence there is some lack of clarity about what should or should not happen to a child. 

23. Rather, as is evident from the parenting agreement, the parties agreed that the father would be able to interact regularly with X on clearly identifiable times and occasions.

24. On 16 August 2019 I was prepared to adjourn the matter.  Over the objections of Mr Avante’s lawyer, I considered that considerations of justice and fairness dictated that Ms Bide should be given an opportunity to seek legal advice and so be able to have professional assistance in formulating any further submissions she wished to put before the Court.

25. But, at the same time, I indicated to Ms Bide that, given what had happened up until this stage, particularly the length of time she had been away from South Australia with X, when coupled with the evidence that indicated that there had been an avoidance of service, that the case would have to be determined reasonably soon, and she could not have an open-ended period of time to file her answering material. 

26. It is my understanding that the legal aid services throughout this country will not grant aid if they consider a person has unilaterally relocated a child, unless there are some special circumstances.  Ms Bide had apparently not been able to secure legal assistance.  This, of itself, does not mean that the case cannot proceed.

27. Today, Ms Bide once again applies for an adjournment.  I am not prepared to grant that adjournment.  I have not only to think of Ms Bide’s interests but also those of Mr Avante.  He brought his application promptly.  It has been adjourned a number of times.  I am not convinced that Ms Bide will be in a position to advance any more evidence, if the matter is adjourned. 

28. Regrettably, as a consequence of her actions, the court has to make unpalatable decisions.  It is impossible for me to make an order that will satisfy both Mr Avante and Ms Bide.  The law is relatively clear.  I have to approach the case from the best interests of X.  That is the paramount, or most important, consideration. 

29. How I do that is governed by the provisions of Section 60CC of the Family Law Act, which contains a number of considerations which I must take into account.  This section contains a list of matters to which the court must have regard in determining a child’s best interests in proceedings coming before it.

30. There are two categories of matter I must consider firstly, two primary considerations.  There are two primary considerations.  Firstly, the benefit of the child having a meaningful level of relationship with both his or her parents, and secondly, the need to protect a child from being exposed to the detrimental physical and psychological consequences of being exposed to family violence, neglect or abuse.  Protective concerns are to be given primacy. 

31. From the father’s perspective, issues to do with X maintaining a meaningful level of relationship with him assume central importance.  If X continues to live in Queensland, it will be difficult for father and child to maintain a close and viable parenting relationship, particularly given X is still a fairly young child.

32. In this case it is not suggested that Mr Avante has neglected or abused the child.  It may be the case that Ms Bide says it is her perception that Mr Avante has been aggressive or derogatory to her, but I also have to consider the context in which these allegations arise, and it is not the case that Ms Bide has formally put these matters on affidavit, although, in my view, she has had ample time to do so.  So I have to give, I think, significant weight to the benefits that X is likely to derive from having a meaningful level of relationship with each of his parents.

33. That creates a situation where, in effect, I have to give Ms Bide a choice, an election.  It is not something that she gave easily to Mr Avante, although, I suppose, he theoretically could travel to Queensland to be closer to X.  However, although that is theoretically possible, the practical implications of it are unclear. 

34. On the other hand, Ms Bide, through her actions, gave Mr Avante little choice.  His relationship with X is effectively severed.  Ms Bide has no realistic proposals for this young child to interact with him.  The case creates all sorts of intellectual, factual, and indeed, moral dilemmas. 

35. Australia is a free country, whose citizens are free to live wherever they choose.  There is no principle of law that separated parents are obliged to live in close proximity with one another ad infinitum.  On the other hand, as a consequence of principles underpinning the Family Law Act children have a right to interact regularly with each of their parents and others significant to their care, welfare and development.

36. Those dilemmas are best teased out in the context of a final hearing, not against a background which has been unfairly skewed to the advantage of one parent over the other.  At this early stage, there has been insufficient time to gather all relevant evidence relating to X’s best interests.

37. In addition, there has been no opportunity for any extensive examination of the motivations of each of the parties for doing what they have done – the mother in moving; the father for wishing to compel her return – in the context of these interim proceedings. 

38. Most significantly, there has, as yet been no examination of the nature of X’s relationship with each of his parents.  These are all things which will occur in the context of a final hearing, which is a much longer process.

39. At that stage, there will, no doubt, be a family assessment which will examine X’s relationship with each of his parents.  That is not available at this stage.  This is a provisional hearing.  I have to put in place an arrangement that I think will best suit X’s interests, notwithstanding the inadequacies of the interim hearing process. 

40. Relocation, obviously, has implications for the quality and intimacy of parental relationships.  These concerns are particularly pressing in respect of young children, and X is a young child.  And fundamentally, I think, I am bound by what was said by the Full Court, particularly in the case of Morgan v Miles, where her Honour, Boland J, said as follows:

    “It [is] highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis.”[1]

    [1] Morgan v Miles [2007] FamCA 1230 at [88]

41. This is an interim hearing.  There was a longstanding arrangement, pursuant to which X lived in South Australia, lived with his mother and spent regular weekend time with his father.  The mother has upset that arrangement.  In my view, she did that without reference to the father, particularly in regards to ascertaining his attitude towards what must be regarded as a significant parenting issue.

42. I have given Ms Bide, I think, an ample opportunity to demonstrate why there is some special emergency or crisis which dictates that what she did can be justified by reference to X’s interests rather than those of anybody else.

43. Ms Bide has told me that her mother is ill with arthritis.  Well, I can only send my commiserations in respect of that difficulty, but balancing that matter against the other issues in the case, noting that Ms Bide said she went for a holiday, that is what her text message said to Mr Avante, and she has changed her mind.  I am not convinced that there was such an emergency.

1. I think the best way to deal with the matter is that the child comes back to South Australia pending a full hearing of all relevant issues.  That gives Ms Bide a choice.  If she wants to remain here, pending final hearing, the child can live with her, and the existing arrangement can be put back in place.  Otherwise, in my view, the child should live with Mr Avante, pending the final hearing, and in due course, I suppose, Ms Bide can apply to expedite that hearing. 

2. So for those reasons, the mother is directed to return the child, X, born … 2013, to South Australia no later than 6pm on 18 September 2019.  That is approximately three weeks from today.

3. In the event the mother elects to live within a 10-kilometre radius of the Suburb A Post Office, pending final hearing of the matter, the child live with her and spend time with the father, pursuant to the terms of the parenting agreement dated 1 November 2018. 

4. If the mother elects not to live in South Australia, pending final hearing, the child live with the father and spend time with the mother at such times as agreed between the parties.  I will adjourn the further hearing of the matter to 11 October 2019 at 2.15 pm.

1. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 4 November 2019