Ball and Dunston

[2018] FCCA 2620

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALL & DUNSTON [2018] FCCA 2620

Catchwords:
FAMILY LAW – Parenting – recovery application – unilateral relocation – where relocation does not allow for a meaningful relationship with the father.

Legislation:

Family Law Act 1975 (Cth) ss.60CC(2), 60CC(3), 62G

Cases cited:

Morgan & Miles [2007] FLC 93-343

Applicant: MR BALL

Respondent: MS DUNSTON

File Number: DNC 300 of 2018

Judgment of: Judge Young

Hearing date: 30 August 2018

Date of Last Submission: 30 August 2018

Delivered at: Darwin

Delivered on: 30 August 2018

REPRESENTATION

Counsel for the Applicant: Ms Franz

Solicitors for the Applicant: Darwin Family Law

Counsel for the Respondent: Ms Morgan

Solicitors for the Respondent: Mb Law

ORDERS

1. That the mother return the child [X] born 2017 to reside in Darwin on a time and date as agreed between the parties.

2. That on the child’s return to Darwin the father is to vacate his unit in favour of the mother (if she wishes) and he is to pay the mother the sum of $150 a week towards her rental costs.

3. That the parties have leave to file interim consent orders in Chambers in respect to spend time with and living arrangements for the mother and child.

4. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child of the relationship [X] born 2017 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released on a date to be advised.

5. That the family report to deal with the following matters:

   (a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

6. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

7. That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000  fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

8. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

9. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference.

   NOTING:

   A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

   B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

   C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 8 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

10. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

11. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

12. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any  material produced pursuant to subpoena  and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served on or before  3 December 2018 as follows:

    (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

    (b)annexing such material as is considered relevant, with

    (c)the affidavit to be paginated, indexed and exhibits tagged.

13. That the matter is listed for trial on 1 and 2 May 2019 at 10.00am (allowing 2 days).

14. That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness 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.

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

16. 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:

    (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.

17. 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.

18. 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.

19. 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.

20. That the matter be adjourned to 11 March 2019 at 11.00am for compliance.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 300 of 2018

MR BALL

Applicant

And

MS DUNSTON

Respondent

REASONS FOR JUDGMENT

Ex – Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a recovery application in respect of a child, [X], who is 19 months old.  The parties separated in April 2018.  It does not appear to be in real contention that the parties have led a reasonably peripatetic life before separation and after, living at various places in Northern Australia, in essence, including Region 1. The parties moved to Darwin either at the beginning of this year or late last year, but, in any event, a relatively short time before separation.

3. The parties, as I say, separated in about April 2018.  The mother indicated that she intended to relocate to Melbourne, where she has family, with [X].  The father advised the mother, by a letter from his solicitors on 4 May 2018, that he opposed that relocation and indicated that if she moved there would be an application for a recovery order.  Apparently arrangements were made for mediation but that did not take place, as I understand it, because the mother unilaterally relocated to Melbourne. 

4. The father is employed as a (occupation omitted) at (employer omitted), and he commences work, or flies out, as I understand it, at 5 am Tuesday and returns to Darwin at about 11 am on Tuesday.  So, in reality, he spends about six and a-half days a fortnight in Darwin.  He earns about $83,000 a year I’m told.  He said in his affidavit in support of his application that, after separation in April to about June, [X] spent regular time with him.  I bear in mind that that’s a period of only about two months.  He said that the usual routine was that he would spend from 2.30 to 5 pm with [X] – or [X] would spend that time with him – on Monday, Tuesday, Wednesday and Thursday, and that is in the second week, his week off.

5. The mother has denied that and she has said that in relation to that paragraph, or that part of the father’s affidavit:

   I disagree that Mr Ball used to spend much time with [X].  From 24 to 30 April – the week after we separated – Mr Ball stayed in the home with us for the week until he flew back to work.  He barely spent any time with [X] and spent his time in the spare room.  From 8 to 14 May – the next time he returned to Darwin from work – he spent two short periods of time with her and a full day.  From 22 to 28 May, [which would appear to be the next available week,] the father was back from work.  He saw her for 40 minutes one day and two and a-half hours on two other days.  I told him he could see her any time he liked but he only chose to do those times.  From 5 to 11 June, when Mr Ball was next back from work, he saw her four days of the time for two or less hours each time.  And since I moved to Melbourne he has not contacted me to see [X] or contacted her in any way.

6. I note in the affidavit that the mother says nothing about the steps she may have taken to ensure that the child at least speaks to her father.  The scenario, I am satisfied – even on the mother’s version of events – is that the child was spending relatively frequent time with the father.  It may not have been regular, but the pattern I notice in her affidavit appears to be of increasing time and increasingly regular time that the child was spending with the father.  It seems to me that with a child who is 18 or 19 months old that it is not surprising that there are relatively short periods that the child spends with the father. 

7. From a developmental psychology point of view, it might be thought that relatively frequent shorter periods of time were appropriate before moving on to longer periods of time as the child grows older.  I see nothing in the pattern described by the mother other than a pattern of a child spending reasonably frequent and relatively regular time with her father when he was not working in his week off. 

8. I consider that a highly important element in this case because, of course, having regard to the child’s age and the sensitive developmental stage she is at, her right to have a relationship with her father, recognised in section 60CC(2) of the Family Law Act, is not going to be satisfied by Skype time or block time, which would be quite impractical in my view, but requires relatively frequent if short periods of time that increase with the child’s developmental stage and age. I’m not satisfied that that is possible while both parents are living approximately 3,000 kilometres apart.

9. The mother says that the issue can be resolved by the father essentially commuting to Melbourne in his week off.  Precisely how that would happen is a little bit unclear.  I wasn’t provided with flight schedules or estimates of costs about how that might be done or really any information about where the father might stay.  It seems to me that would involve a holus-bolus relocation by the father to Melbourne and commuting from Melbourne to Darwin to (employer omitted) twice a fortnight as well as living in Melbourne.

10. While I am not satisfied that that is impossible nor am I satisfied that it is possible because the evidence in front of me really is, on that subject, somewhat speculative.  The father says that it would be difficult for him because of the commute.  He says that he was retained here in Darwin and his employer pays for his flights from (employer omitted) to Darwin but there would not be a prospect of an employer paying for him to fly – as I infer from his evidence about that –from Melbourne to Darwin.  So he would be expected to pay for those Darwin to Melbourne flights on two occasions each fortnight which, I imagine, would be a very significant expense although not necessarily one that I would be satisfied he could not afford but it’s a matter on which I think there needs to be more evidence if that position is to be maintained by the mother.

11. The father says, on the other hand, that if the mother returned to Darwin, he would vacate the unit he is presently living in and for which he pays $300 a week rent and he would contribute $150 a week rent to the mother so that her housing costs were $150 a week pending trial.  The mother says, well, that is of no real assistance because her income is very limited.  She says she has an income of only $470 a week, that is, $170 a week from a Family Tax Benefit and $300 a week child support paid by the father, a total income of $470 a week.

12. I asked her counsel whether or not the mother was entitled to a Centrelink payment as she is a single parent with responsibility for a very young child. I was told that the mother was not eligible for such a payment because of her savings.  At the time she swore her financial statement on the 12 July she had savings of approximately $39,000 in cash and it may be that that amount of cash disqualified her from obtaining any Centrelink benefit.  I was told from the bar table that her savings have dwindled to less than $15,000.  I asked whether that made a difference to her eligibility for payment and I was told by counsel that she could not answer that question.

13. It appears to me that the mother’s financial situation is somewhat unclear.  It does appear to me, however, that, while the father has offered to contribute $150 a week to her rent, in substance a spousal maintenance payment, his potential liability is significantly more than that by way of spousal maintenance. I’m not satisfied, given that there is an offer of accommodation with, in effect, a spousal maintenance payment of $150 a week, that the mother cannot afford to live in Darwin, at least in the interim prior to a trial.

14. It was said that the child is well settled with her mother in Melbourne, apparently living with the maternal family and that stability should not be upset.  However, it appears to me that to describe that as “stability” is perhaps unjustified.  The relevant factors that I am satisfied exist are that the parents of this very young child separated a little more than four months ago, that after separation the father was spending relatively regular and reasonably frequent time with the child until the mother unilaterally relocated to Melbourne against the wishes of the father and knowing that the father opposed that relocation.

15. Having regard to the child’s age, I’m satisfied that in satisfying the requirements of Part VII of the Family Law Act, that is, in determining the best interests of the child as the paramount factor, that, having regard to section 60CC(2), it is a primary consideration in the circumstances of this case that I give weight to the benefit to the child of having a meaningful relationship with both of the child’s parents. I’m not satisfied that that can be achieved with the mother continuing to live in Melbourne.

16. It may be that at a trial it will become clearer but having regard to the principles set out in Morgan & Miles [2007] FLC 93-343 by the Family Court, it appears to me that until the Court can make a proper assessment of the different factors to be considered in assessing this child’s best interests that the arrangements that were in place immediately before separation, so far as possible, should be recreated, and I’m satisfied on the balance of probabilities that they can be.

17. There is no issue raised in this case about the matters in subsection (2)(b), that is, the need to protect the child from physical or psychological harm, and there is no evidence of that.  The mother makes an allegation that in April 2018 there was an incident of family violence where the father assaulted her: knocked her off a chair or pushed her off a chair and put his hands around her throat.  There is some corroboration of that complaint in a doctor’s notes made in May, and I am prepared to accept that there is prima facie evidence that there was an incident of family violence then.

18. However, the doctor’s notes from April also say that the mother did not make any complaint of family violence or domestic violence on first presentation.  There is a note to that effect.  It’s said by counsel that that’s not the case and there are allegations of family violence preceding separation but on the material before me the incident of family violence referred to appears to be an isolated incident.  Whether or not that is truly the case I cannot determine on an interim hearing but it appears to be an isolated incident and if I propose to make injunctive orders which it appears to me are likely to ensure that there is no repetition of such an incident.

19. I have regard to the other matters in section 60CC(3) and the matter that I consider of particular relevance there is (3)(d), the likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of her parents. As I say, I’m concerned, having regard to the age of this child and the sensitive developmental stage, that there ought not be a prolonged separation of the child and either parent. There is nothing in the material to suggest that there is any serious lack of capacity on the part of the parents. The mother makes allegations about the father drinking, but that’s a matter that I think must await trial, similarly her other related allegations of indifference or lack of capacity.

20. I have adverted to the issue of family violence.  There is no family violence order.  So having regard to those factors in particular I’m satisfied that there ought to be an order that the mother return the child’s residence to Darwin.  I understand that if I make such an order a recovery order will not be necessary.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 14 September 2018