BELLARD & VELMONT

[2020] FCCA 3595

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELLARD & VELMONT [2020] FCCA 3595

Catchwords:
FAMILY LAW – Parenting – application by the father for interim orders preventing the relocation of the child – where the mother is the primary carer of the child – where the mother has obtained employment in Town B – where the mother proposes to relocate to Town B with the child – not satisfied the relocation of the child will have deleterious effect on relationship with the father.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR BELLARD

Respondent: MS VELMONT

File Number: DNC 684 of 2020

Judgment of: Judge Young

Hearing date: 22 December 2020

Date of Last Submission: 22 December 2020

Delivered at: Darwin

Delivered on: 22 December 2020

REPRESENTATION

Counsel for the Applicant: Ms Franz

Solicitors for the Applicant: Darwin Family Law

Counsel for the Respondent: Ms Holtham

Solicitors for the Respondent: Story & Associates

ORDERS

UPON NOTING:

That the mother wishes to relocate to Town B to take up a public service position for approximately 6 months.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That child X born in 2014 live with the mother.

2. That the mother and child be permitted to relocate to Town B.

3. That the child spend time with the father at times as may be agreed between the parties.

4. That pursuant to s.11F of the Family Law Act 1975 the parties attend reportable child dispute conference at the Federal Circuit Court of Australia, Darwin on 18 March 2021 at 9.00am with a family consultant, to discuss the care, welfare and development of the child X born in 2014 in an endeavour to resolve any differences between the parties in relation thereto. The parties are to confirm their attendance to the Case Co-ordinator Child Dispute Services by email at [email protected] or alternately call 1300 352 000 fourteen days prior to the date of the interview and in the event such confirmation is not received the interviews will be cancelled NOTING that the family consultant is to have discretion as to how the parties attend.

5. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

6. That the matter be adjourned to 5 May 2021 at 10.30am for interim hearing in relation to the time the child spends with the father and any other relocation issue with one hour allowed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 684 of 2020

MR BELLARD

Applicant

And

MS VELMONT

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 an application by the father of a six year old child to prevent the mother relocating from Darwin to Town B with the child.   Town B is some 900 kilometres from Darwin.  It is a 10 hour drive or thereabouts.  A shorter journey by air, of course, to Town C.  It is not in contest that the child has been spending, since April 2020, every second weekend with the father, I think, from Friday evening to Sunday.

3. What the situation was before March or April 2020 is very unclear on the materials.  The father asserts in his affidavit that from about March 2018 to March 2020 he resided with the mother and the child.  He gives the impression that he was present in the household throughout that period or the households.  It is apparent from my questioning of Ms Franz that the parties lived in two separate households over those two years.

4. The mother says that, in fact, the father was not much more than an occasional or, perhaps, regular housemate and that he was employed as a fly-in fly-out worker in Western Australia throughout 2019 and up to March 2020 when, because of the pandemic, he was unable to fly-in and fly-out of Western Australia. Before that he spent nine days a month living in the household of the mother and the child.

5. I cannot make any finding about that but, suffice to say, I consider it is apparent that the living arrangements prior to March 2020 of these parties is very unclear.  The amount of time that the child was spending with the father prior to March 2020 is also unclear. 

6. The mother is a public servant by profession.  The mother has been working in the Darwin area in recent years as a public servant.  She says in her affidavit that she has, since March of 2020, been proposing to seek a position in a remote town where, she says, that her chances of promotion, advancement, and so on, will be increased.  She says that she is also likely to be paid more in a remote town. 

7. She says that she has received a six month contract at her employer in Town B and she proposes to take the child who is, as I say, six years old.  She commenced preschool this year, I understand, and would, presumably, commence primary school proper next year.  She will take the child with her. 

8. The father is opposed to the move.  His affidavit is very unclear about when he expressed his opposition to the mother moving to Town B.  He says “… From the outset.” but that is contested by the mother.  She creates the impression in her affidavit, although it is not dealt with expressly, that the father was not opposed to that course or, at least, left her with the impression that he was not opposed to that course.  I cannot make any findings about those matters. 

9. However, it is not in contention that the mother told the father as of March 2020 she was proposing to move to a remote town if she could find a job.  It seems that, at some point, she gave the father her furniture, as he was renting a premises, which he accepted.  That is only really consistent, in my view, with, at some point which is unclear to me, the father accepting that the mother would be moving.

10. The father, also, says in his affidavit that he was unable to move as there is no work for him in Town B.  He is a tradesman and he does not say, as is customary in the introductory sentences of these affidavits, what he does for a living but somewhere in his affidavit he says that he is a tradesman and works in manufacturing.  Close to Town B there is a very large employer called Employer C that has been in operation there for many years and is an employer of a great many people including tradesmen, I assume.

11. In the father’s affidavit, he says:

    I cannot work in Town B in my area of specialisation.  I have looked for work in Town B since Ms Velmont mentioned she wanted to move, and I could not find anything.

    That implies that, certainly, since March, he has been open to the suggestion of the mother moving because unless he was open to the suggestion he would not have looked for any work.  He says he cannot find any work.  There is no evidence that that is the case.  At paragraph 15 he goes onto say:

    I am aware the employer…

    which is undoubtedly a reference to the Employer C:

    is in the process of shutting down.

    How he knows that is unclear.  It is common knowledge in the Top End, at the moment, that the Employer C which has operated for some 30 years or so has been granted an approval by the Territory Government to expand its operations.  And as far as I am aware there is no suggestion anywhere in the newspaper reports that I have seen that the site is about to close down, on the contrary.  I do not accept the father’s claims in relation to the lack of availability of work or, indeed, that he has searched for work and been unable to find any. I would have expected some evidence of that had it been the case.

12. The mother says, in her affidavit, that she has accepted the contract in Town B.  She says that she does not have any other work available next year as she has, presumably, informed her present employer that she will not be returning.  I have no difficulty in accepting what she says about that.  It seems to be a common sense position.  She has accepted a contract somewhere else.  She is committed to that course and unable to return.  I accept that’s very likely to be the case.

13. She is the primary carer of this child and has been the primary carer of this child for, it would appear, most of the child’s life.  In my view, while her move to Town B for six months will, likely, interfere with the present arrangements,  I do not consider, having regard to the child’s age, that it is likely to have any particular deleterious effect on the child’s relationship with the father.  Of course, the child can travel to Darwin over the holidays and, probably, if the regular flights from Darwin to Town B or Town C resume, which I expect they will in the not too distant future, then, the child can spend time with the father more regularly. 

14. I am particularly influenced in this matter by the fact that, as I say, the mother is the primary carer.  I suspect that the father’s opposition to her move has been communicated to her relatively recently and that she had committed herself to this course and would otherwise, very likely, be unemployed.  Her contract is for six months.  It seems to me that the matter can be reviewed after that.  I will give the matter an interim hearing date. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Young.

Associate: 

Date: 21 January 2021