BEST & BEST

[2017] FCCA 1684

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEST & BEST [2017] FCCA 1684

Catchwords:
FAMILY LAW – Interim parenting – relocation – final orders in 2015 for equal shared parental responsibility – mother moved with children in face of father’s opposition to such relocation – father sought order for children’s return to vicinity of previous residence.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 65DAA

Cases cited:

Goode & Goode (2007) 36 FamLR 422, (2006) FLC 93-286

Keats & Keats [2016] FamCAFC 156
Marvel & Marvel [2010] FamCAFC 101
Morgan & Miles (2007) FLC 93-343

Applicant: MR BEST

Respondent: MS BEST

File Number: PAC 5790 of 2015

Judgment of: Judge Obradovic

Hearing date: 4 July 2017

Date of Last Submission: 4 July 2017

Delivered at: Parramatta

Delivered on: 7 July 2017

REPRESENTATION

Counsel for the Applicant: Mr Kenny

Solicitors for the Applicant: Joseph Grassi & Associates

Appearing for the Respondent: Ms Ferguson

Solicitors for the Respondent: McNamara & Associates

PENDING FURTHER ORDERS

1. By 4pm on 14 July 2017 the Respondent mother shall return the children X born (omitted) 2008 and Y born (omitted) 2011 to within 5 kilometres of the boundary of the City of (omitted).

2. Following compliance by the Respondent mother with the above order the Respondent mother is restrained from changing the place of residence of the children X born (omitted) 2008 and Y born (omitted) 2011 to any place outside the area referred to in Order 1.

3. In the event that the Respondent mother has failed to comply with order 1 within the time period stipulated in that order, or breaches order 2, then order 2 of the Orders made on 2 December 2015 is suspended and the children will forthwith thereafter live with the Applicant father.

4. In the event that pursuant to order 3 the children live with the Applicant father the children will spend time with the respondent mother as arranged and agreed between the parents, but in any case not less than each alternate weekend from 6pm Friday until 6pm Sunday commencing the Friday after the children commence living with the Applicant father.

5. In the event that the respondent mother complies with order 1 and order 2 or after such time she herself relocates to an area within 5km of the boundary of the City of (omitted) then the children:

   (a)During school terms, will be collected by the Applicant father from school every Wednesday and returned to school by the Applicant father the next day;

   (b)Will spend time with the Applicant father each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday and the Applicant father shall be responsible for returning the children to school on that following Monday;

   (c)Will spend each alternate week of each school holidays with the Applicant father from 9am on Monday until the same time in the following week;

   (d)Will spend time with the Applicant father or the Respondent mother (as the case may be):

   (i)From 9am on the morning of the Applicant father’s birthday and the Respondent mother’s birthday (as the case may be) until 9am the next day; and

   (ii)Alternating each year, from 1pm on Christmas Eve to 1pm on Christmas Day, commencing with the Applicant father for Christmas 2017; and

   (iii)Alternating each year, from 1pm on Christmas Day to 1pm on Boxing Day commencing with the Respondent mother for Christmas 2017.

6. Except where these orders specify otherwise, the parties will meet at the required times specified in these orders at (omitted) Shopping Centre, (omitted).

7. List the matter for directions at 9.30am on 20 November 2017.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5790 of 2015

MR BEST

Applicant

And

MS BEST

Respondent

REASONS FOR JUDGMENT

Introduction

1. X, born on (omitted) 2008, and his little sister, Y, born on (omitted) 2011, live with the Respondent mother pursuant to final parenting orders made on 2 December 2015.  Pursuant to those orders, the parents have equal shared parental responsibility for the children.  The children are to spend time with the father as agreed, and, failing agreement, each alternate weekend for two consecutive days, being a period of 48 hours, and one evening per fortnight, as agreed and arranged by the mother. 

2. At the time of those orders, the mother was the registered owner of Property A, which was the former matrimonial home and where the children have lived, it appears, for their entire lives until 30 May 2017.  On the mother’s evidence, the father moved out of that home in Property A in or about April or May 2016.  The December 2015 orders ensured that the parties’ finances remained intermingled for a contemplated period of some five years. 

3. Pursuant to those orders, the Court noted at that time that the mother was the registered owner of the Property A property that that property was to be transferred to the father and that upon transfer, the father was to pay to the mother the sum of $190,000.  Also noted in those orders was the fact that the mother had, at the time of the 2015 orders, exchanged contracts for sale for a property located at Property B, which was vacant land at the time.  The settlement date was scheduled for 15 January 2016.  The notation in the December 2015 orders noted that the vacant land was purchased for $335,000 and that total sum of $543,000 was to be borrowed to build and construct a home on that land.  It was further noted that both the father and the mother would be registered as co-borrowers on the mortgage obtained from (omitted) and that the parties would be registered on title as tenants in common. 

4. The father had given the mother five years from the date of the orders for the mother to purchase the property to release the father from the (omitted) mortgage.  It was contemplated by the orders that no later than 16 January 2021, the husband was to do all things and sign all documents necessary so as to transfer to the wife, all of his title and interest in the Property B property. 

5. Although five years for that transfer was contemplated in the orders, what transpired was that the mother could not maintain the mortgage repayments over that property such that the build could be finalised and after the making of the December 2015 orders, the land at Property B was sold a short time later.  Exactly when it was sold is not the subject of any specific evidence in the mother’s case. 

6. Despite the father being the legal owner of the property, being the Property A property pursuant to what was to occur as a result of the orders made in December 2015, the mother and the children remained living in that home and the mother subsequently repurchased the property back from the father in or about late 2016 or early 2017.  Once again, that date not being clear and not being the subject of any specific evidence in either the mother or the father’s case, although, it is the subject of some evidence in both of their cases. 

7. It seems that then in or about January 2017, perhaps after the mother repurchased the Property A property from the father, she commenced telling the father that she was moving with the children to the (omitted). At or about this time, the mother commenced a serious relationship with her current de facto partner whom she had known for a number of years previously. 

8. On or about 30 May 2017, the mother simultaneously settled the sale of the Property A property and the purchase of a house in a small village near (omitted), some 160 kilometres away from the Property A property.  That new property being bought together with her current de facto partner who is, except for some evidence which was filed this morning and which has not been read in these proceedings, not a witness in the mother’s case at the time of the interim hearing. 

9. The mother annexes to her Affidavit relied upon at the interim hearing, redacted letters from her conveyancer regarding the sale and the purchase of those two properties.  The Court is, therefore, left in the dark as to the financial position of the mother at the time of the purchase, how much she herself contributed to the purchase of this new home near Property C or, indeed, how much she received as a result of the sale of the Property A property.  There were some submissions made on behalf of the father that the mother netted a significant profit in a very short period of time as a result of the sale of the Property A property; but, once again, that is not the subject of any evidence. 

10. Importantly, there is no evidence in the mother’s Affidavit of any discussions with the father about the sale of the Property A property before it was to occur.  The mother deposes to conversations in paragraph 56 of her Affidavit about her proposed move.  She says in paragraph 56: 

    In early April 2017, I told Mr Best that I had decided to move down to the (omitted) area and would be going as soon as possible.  I said, “I’m looking for a place down the (omitted) because I’m ready to move.  I’m not happy here and these arrangements are affecting the children negatively.”  He replied, “No you’re not.  The children are staying here with me if they want to.  That’s what we agreed.”  I said, “No I did not agree.” 

11. At the time, in early April 2017, the mother was certainly on notice that the father did not agree to the children’s residence being moved from the (omitted) area to the (omitted) area of New South Wales.  It was shortly after this conversation in early April 2017, that the Property A property was sold.  And by sold, it is meant, that there must have been an exchange of contracts in or about mid-April 2017 because settlement occurred on 30 May 2017. 

12. On 20 May 2017, the mother sent to the father an email where she stated the following: 

    I am writing to advise you that we will be moving just outside of (omitted) in June and I will advise you of our address within 48 hours of it becoming our permanent residence. 

    Until most recently, you were very supportive of myself and the children moving to the (omitted).  The area and home was primarily picked based on the children’s best interests.  Each child will have their own bedroom with parks and schools within walking distance. 

    As you also know, I have a support network by way of close friendships down there and the children are familiar with enjoying the (omitted) as we have holidayed with them regularly from birth. 

    Our close friends and family here are excited and plan to regularly visit with us and have offered full support. 

    Moving into a beautiful new home should be exciting for our children.  But changing their familiarities could be daunting for any child. 

    Most recently, you have been showing some hostility towards me and I hope you will put this aside and start being positive and reassuring to make the transition to our new home as smooth as possible for our children. 

    I do need to also express my concern again by how you are talking to the children about living with you. 

    Most recently, as I have addressed with you via text message, X and Y have been telling me that each day you are in their care, you talk to them about why they should live with you and that I am taking them too far away so they can’t see you and that they can choose to live with you or I if they want to. 

    Although they are very excited and welcoming of our move, they are becoming very confused and regularly anxious and distressed with what you are saying to them. 

    I am even more concerned as your responses to me are that they can live with you, that they do have a choice and that I have agreed to them choosing, which is not the case. 

    I am aware from the children that you are finally moving into a house suitable for them to come and stay.  I think this is a positive and have reflected this in my conversations with them.  

    I hope that all future conversations you have with the children from hereon will be positive and reassuring about their move to their new home with me also. 

13. During submissions made by the mother’s solicitor at the interim hearing, it was conceded by the solicitor acting on behalf of the mother that the mother had been having regular conversations with the children about her intended move to the (omitted) with the children while at the same time submissions were made which were critical of the father having similar conversations with the children about his disagreement with such a move and offering the children the choice as to whether they wanted to live with him in the (omitted) area or move to the mother down to the (omitted). 

14. The father replied to the mother’s email on 23 May 2017.  That email is also the subject of evidence in the mother’s case.  In the email of 23 May 2017 the father states as follows: 

    I received your email yesterday upon my return to the office. 

    Over the course of our marriage, we have discussed moving numerous times and always decided that the best option was to stay in the local area and maintain the stability for all 4 of the kids, because of their close affection for the family in the area, existing friendships and the fact that we both agreed it was a good area to raise the children. 

    After our separation, you raced down south to buy a property which I then had to assist you both emotionally and financially so as to prevent you from going bankrupt, losing both your new purchase and existing house which you had to sell to me and only three months ago repurchased the old house back off me. 

    You also told me at the time you realised how hard and isolated it would be for you.  Now, only months after regaining stability of ownership in the local area you are wanting to do it again, this time further away. 

    Apart from your new partner with whom you have led me to believe you have only been seeing for less than six months, the only friend I am aware of you having in the area lives a further 45-55 minutes south and any associates of your new relationship. 

    As mentioned to you and the children, and as we have joint custody, they are always welcome to live with me.  And in light of your choice to move, that they are able to remain in the local area and maintain their existing structure with local family, friends, schooling and involvement in local sports and activities.  A, X and Y have all expressed to me a wish not to move.  B is too young to understand. 

    The children are experiencing anxiety and distress at the thought of moving, and this comes from knowing how much this move will impact on their current relationships and the problems you went through last time. I am not telling them any lies, only the facts and realities of the impact on them.  Y told me that you told them I would only be an hour away.  You and I are fully aware that on a good run, there is two+ hours, not taking into consideration any weekend traffic, peak travel times or roadworks which are being undertaken and any other factors.  As I am familiar with (omitted), I am aware it is an expensive area, and if you are getting a room for each child in a new house with five + bedrooms, I hope this does not cause a financial strain or stress, as any emotional impact on yourself will carry over to the children. 

    Having an expectation of friends regularly being able to travel hours, I believe, is unrealistic, and you should approach it that you may only see them during holidays, if available.  The kids would not see them as often as you are making out. 

    Since Easter this year, you have wanted to change our agreement in relation to my access to the children.  I have contacted a mediation centre, who will be in contact with you to arrange a meeting, as your new endeavour will impact on all concerned. 

    My fear is for the children.  The last time they were too young to understand, but with that experience and being older, they are more aware.  Your decision to move is not in the best interests of the children, but for your own personal gain of enhancing a new relationship which clearly disregards the interests of the children.

15. After the mother received this email, she nonetheless moved with the children:

    a)in light of the known opposition;

    b)in face of an order for equal shared parental responsibility made by consent on 2 December 2015; and also, importantly;

    c)in the face of advice received from her solicitors, which is contained in paragraph 74 of her Affidavit, which was to the effect of:

    You’ve got shared parental responsibility, so Mr Best has to agree to your move.

16. The mother gives earlier evidence in paragraph 72 of her Affidavit about advice she received, however the date on which she apparently spoke to her solicitor is not known.  That evidence in paragraph 72 is to the effect that the mother consulted with her then solicitors, Matthews Folbigg, and that it was apparently suggested to her to advise the father via email a couple of weeks prior to the move and include reasons and positives for the home which the mother chose.  The mother also sought advice from that solicitor on the breakdown of communication between the father and herself and explained her reasoning behind trying to revert back to the orders. This is the mother’s evidence in paragraph 72 of her Affidavit, which was filed on 3 July 2017. 

17. It appears that given what is contained in paragraph 72 as well as paragraph 74 of the mother’s Affidavit that she may have waived any privilege which she had in relation to the advice which she received from Matthews Folbigg, a matter which is ultimately not a matter which the Court can make any determinations about today; however, a matter which may be the subject of relevant submissions and cross-examination once, and if, this matter goes to final hearing.  Certainly, the mother, not on her own evidence but in accordance with the submissions made by the mother’s solicitor at the interim hearing, seems to have received advice from her current solicitor about the move on or about 1 June 2017.

18. In any event, the reality of the situation is that, as already mentioned, if the Property A property was sold, that is, contracts were exchanged in or about mid-April, for settlement to occur on 30 May 2017, that house must have, in all probability, been marketed for at least some days, if not weeks before about mid-April 2017.  The mother’s actions in moving, as she did on 30 May 2017, must be understood not only in light of the advice which she alleges she received from her solicitors, but also in light of the emails which were exchanged between the parties, and, importantly, in light of the correspondence which was exchanged between the solicitors prior to the email which the mother sent to the father on 20 May 2017.

19. Those letters are annexed to the father’s Affidavit, and the first of those is dated 15 May 2017.  In that letter, the father’s solicitor, in correspondence to the mother, addressed to her address at the Property A property, asserts that the parties prepared draft orders (in 2015) and that there was an agreement reached between the parties for the father to spend time with the children on Wednesday afternoons from after school and return the children the following morning to school, and that the father will collect the children from school each alternate Friday afternoon and return them to school on the following Monday.  There was an assertion that that agreement was satisfactory to the father and agreed by the mother, and that it had been in place for over 12 months.

20. There was then an assertion that the mother had indicated to the father that she would not abide by that agreement and that the father was concerned about the mother’s unilateral decision to dictate times when the father would spend with the children, which had the potential to disrupt the children’s routine, which was inconsistent with the agreement that had been in place and operating successfully for the past 12 months.  The father, in that letter from his solicitors, indicated his continued wish to persist with this arrangement which he asserted had been in place for the last 12 months.

1. The mother’s solicitors replied on 17 May 2017. In that letter, Matthews Folbigg, who acted for the mother at the time, attached final orders which were made by consent on 2 December 2015 for the attention of the father’s solicitor, and, importantly, the following matters were noted in that letter:

   Whilst our client concedes that for a limited time there were alternate arrangements, [those alternate arrangements being alternate to what is provided in the final orders dated 2 December], they were for a limited time only of approximately some months and not 12 months, as stated in your letter.

2. Next, the letter asserts:

   In any event, our client instructs us that she notified your client approximately 3 months ago that she sought to revert to the Final Orders rather than continue the alternative arrangement.

3. The mother then sought to reserve her rights in relation to filing an application, and it was thereafter that a further letter dated 24 May 2017 was sent from the father’s solicitor to the mother’s solicitor, a day after the father’s email of 23 May 2017. That letter reasserted the father’s position that there had been an agreement between the parties for the children to spend time with the father from after school on Friday to before school on Monday and on the Wednesday to the Thursday. It further stated as follows:

   It has now come to our client’s attention that your client proposes to relocate the children’s place of residence to the (omitted).  Your client proposes to take that action on a unilateral basis without our client’s consent. 

   We are instructed that unless your client gives her undertaking that she will not relocate the children’s place of residence, as threatened, which renders the orders beyond compliance in the circumstances in which it was made, we are to make application for injunction to restrain your client from removing the children from their current residence without further notice to your client.

4. The next that the father knew was that on 30 May 2017 he received a text message from the mother (after his email of the 23^rd and after his solicitor’s letter of 24 May 2017) which was received at or about 12.45pm, and it read as follows:

   Hi Mr Best,  Just letting you know kids aren’t at school, as we are moving house today, a little earlier than expected.  Our address will be (omitted).  I will get the kids to call you tonight.  Will work the finer details out with you as soon as we’re settled.  Very hectic ATM [at the moment].

5. The father replied, saying to the mother that she was not looking at the children’s best interest and that he expected the children to be available at 3pm the following day.  There were then some further text exchanges between the parties.  The proceedings by the father were commenced soon thereafter, with his Initiating Application having been filed on 23 June 2017.

6. The mother, in her submissions and through her evidence, asserts that the fact of her and the children living on the (omitted) was a matter that had been contemplated at the time that the consent orders were entered into, that the father had previously agreed to such a move, that the mother had been the children’s primary carer both before and after separation, that the father had, notwithstanding the orders, ad hoc time with the children due to his working commitments, and that the orders which were made were always meant to be flexible, due to the contemplated move by the mother to the (omitted).

7. That is the brief background of how this application came before the Court and in what circumstances the father’s application to have the children returned to the (omitted) area came to be heard by this Court on 4 July 2017.

The Law

1. The Court, in determining this application, has to consider what orders are in the children’s best interest. In determining what is in the children’s best interest, the Court must consider the matters set out in section 60CC of the Family Law Act1975. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interest of the children. In applying the primary considerations, the Court is to give greater weight to the considerations set out in paragraph 60CC(2)(b). In addition, in considering what order to make, the Court must, to the extent that it is possible to do so, ensure that the order does not expose a person to an unacceptable risk of family violence. The Act does not mandate the discussion of considerations under section 60CC in any particular order, and it is well recognised that additional considerations may outweigh the primary considerations.

2. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests. In the interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.

3. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the children’s best interest and reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents.

4. Section 65DAA is expressed in imperative terms. The Full Court in Goode & Goode[1] mandated that this legislative approach must be followed in all parenting cases and, in particular, set out the procedural steps to be followed on an interim application noting that in interim proceedings, there may be little uncontested evidence to enable more than a limited consideration of these matters to take place. 

   [1] (2007) 36 FamLR 422, (2006) FLC 93-286

5. In Marvel & Marvel[2], the Full Court made the following obiter comments. 

   As has frequently been emphasised, interim parenting proceedings and orders made as a consequence are a necessary, but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult, and often, for very good reason, a conservative approach or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires or thinks to be in the children’s best interests.  Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at final hearing… 

   [2] [2010] FamCAFC 101 at [120]

6. In Keats & Keats[3], the Full Court held in respect of the conduct of interim proceedings:

   …that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on the children in the event that a controversial assertion is acted upon or rejected.

   [3] [2016] FamCAFC 156 at [9]

7. Relevantly to the current application, of the decision of Morgan & Miles[4] of Boland J which has subsequently been approved at least by the Full Court in Malcolm & Munroe[5] which was a decision in 2011.  In Morgan & Miles, Boland J made a number of very important and appropriate, to this instance, both obiter comments and matters which were subject of the ratio of that case in relation to what are frequently termed interim relocation applications. Starting at paragraph 55, her Honour stated as follows:

   On one reading of the submissions, it assumes a “right” to relocate.  There is nothing in the legislation which provides that a parent who has an existing order which provides that a child spends fifty per cent or more of his or her time with that parent has a unilateral right to move the child (on the basis that this is in the child’s best interest).  While such a move may, after the exploring of all relevant factors, be found to be in the child’s best interests, those interests can only be determined by examination of the relevant factors in the structure exercise of discretion required by the legislature.  It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur and that a court’s discretion in determining a child’s best interest including time to be spent with the other parent be inappropriately fettered by a move which has already occurred.

   [4] (2007) FLC 93-343

   [5] [2011] FamCAFC 16

8. Next at paragraph 66, her Honour noted as follows:

   The effect of an order which provides for shared parental responsibility is to require parents to jointly make a decision about a major long-term issue for the child.  Major long-term issues include matters such as the child’s education, religious and cultural upbringing, health and name and “changes to the child’s living arrangements that make it significantly more difficult for a child to spend time with a parent” (s.4(1)).(Emphasis added).

9. Her Honour further noted at paragraph 72 that:

   There can be no dispute that in determining a case where one party which research indicates is invariably the mother,… wishes to relocate a court in making a parenting order generally about who the child will live with or with whom the child shall spend time with.  The Act does not treat “relocation” cases as a special category of parenting orders.  In that respect the amendments to the Act which were made at that time has affected no change to the law. 

10. At paragraph 73, her Honour said:

    It is also undisputed that in determining a parenting case where one parent wishes to relocate, the child’s best interests remain the paramount, but not [the] sole consideration.

11. At paragraph 74, her Honour went on to say:

    The Act does not contain any presumption against a parenting order which involves relocation nor any presumption in favour of a parent with whom a child lives predominantly at the time of the application to obtain such an order.  The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made. 

12. At paragraph 75, her Honour said:

    It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if the proposed living arrangements for a child would make it significantly more difficult for that child to spend time with the “left behind” parent. 

13. At paragraph 79, her Honour set out the matters which the Court is to consider in circumstances where the parent with whom the children live proposes to relocate.  In those circumstances, her Honour suggested that the Court must be satisfied that the parties have:

    …unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute; make orders having regard to the child’s best interest as the paramount, but not the sole consideration; be guided in its determination by the objects and principles underpinning the legislation.  This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child. 

    If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child that the parties have equal shared parental responsibility for a child. 

    In making an order for equal shared parental responsibility have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

    When dealing with an application involving an intrastate, interstate or an international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects of parental responsibility if it is impractical for the parties to equally share parental responsibility and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

    Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposal of the parties and the proposal found by the judicial officer to be in the child’s best interests make such order which may provide:

    that the child lives with the parent who wishes to relocate and spend time with and communicate with the other parent,

    that the child live with the non-relocating parent and spend time with and communicate with the other parent,

    that the child lives equally with the parents in the existing locale and lives with one parent and spend substantial and significant time with the other parent in the existing locale,

    the non-relocating parent move to the venue chosen by the relocating parent and the child live equally with the parents or lives with one parent, spends time with the other parent. 

    Because each case presents different facts and issues for determination, no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing laws should provide general guidance. 

14. Her Honour then went on to say in paragraph 87 that:

    As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant. 

15. Her Honour then went on to say at paragraph 88:

    It appears to me that the very the very difficult issues in cases involving a relocation which difficulties are highlighted in the cases and referred to by the Family Law Counsel in its 2006 report Relocation: a report to the Attorney General prepared by the Family Law Counsel, make it 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 types of cases in which the child’s present stability may be extremely relevant on an interim basis. 

16. Her Honour further went on to say at paragraph 91 that:

    It is not the distance, per se, that should be the determinative criteria.  In many cases what is relevant is the consequences of the move or the proposed move.  The issues to be determined may be quite different for example, for an infant or a toddler … older children, or for economically impoverished families... Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with a relocating parent, and spending time with the other parent where, with alternative arrangements, the child’s relationship with a non relocating parent can be maintained and fostered.

17. The difference in this case to Morgan & Miles is that the mother moved before these proceedings commenced, whereas in Morgan & Miles, the mother moved after the proceedings had been commenced.  In any event, in the current instance, the mother moved after there were final orders made providing for the equal shared parental responsibility of the children and in circumstances where she knew that the father did not consent to such a move.  The agreed facts in this matter are not many.  They are as follows:

    a)There are two children, the subject of these proceedings. 

    b)The mother has an older child who is the half-sibling of the subject children who has been living in the same household as the father and the mother for the duration of their relationship and had, according to the mother’s evidence, a significant relationship with the father. 

    c)There is one other child who lives in the mother’s household, that child being a ward of the state who is a niece of the mother who has also, for some period of time, lived together with the mother and the father prior to their separation. 

    d)That the children have lived primarily with the mother post-separation. 

    e)That the children have spent time with the father on at least each alternate weekend and, perhaps, even one to two extra nights per fortnight since separation.

    f)That the father has been involved in picking the children up from school from time to time post-separation

    g)That up until 30 May 2017, the children have always lived in the Property A house. 

    h)That the father is involved, or was involved, in the children’s care before and after separation including the care of B, the child’s half-sibling. 

    i)That the mother moved with notice of the father’s opposition to the move. 

18. What is not agreed is whether or not there had previously been an agreement for the mother and the children to move to the (omitted), and what is also not agreed is what time exactly the children had been spending with the father prior to the mother’s unilateral relocation on 30 May 2017. 

19. In relation to first major issue which is not as agreed, whatever the agreement may or may not have been, it is clear that at the time of the move and at least since early April 2017, the father did not agree to the children’s residence being relocated. Whether there had been agreement previously is a matter that may or may not be relevant to any ultimate findings about what is in the children’s best interests, but at present it is a matter which is clearly in dispute and a matter about which the Court cannot make any findings. Even if there had been an agreement, it is undisputed that as at April 2017 there could no longer have been such an agreement. 

20. The mother’s solicitor during the submissions took the Court to the application for consent orders which seemed to foreshadow some sort of move by the mother and the children to the Property B property.  However, that is not a move which ultimately occurred.  And, indeed, there were subsequent significant changes to the mother’s circumstances after those orders were entered into, the least of those being that the youngest child, who currently lives in the mother’s household, came to be in the mother’s care;  and also that the mother had re-partnered to her current de facto partner. 

21. In any event, as already mentioned, the mother did not move to that Property B property, which is noted in the application for consent orders but to another property which she purchased with her current partner in late May 2017.  Even if there was an agreement, the Court was not taken to any principle of estoppel that might have been applicable in the current circumstances so as to prevent the father from arguing that the children should be returned to the (omitted) area as he has in his application before the Court.

22. In relation to the second issue, which seems to be the major issue in contest, that being what time the children were spending with the father prior to the mother’s unilateral relocation, the evidence in the mother’s case appears to be internally conflicting. The Court notes the letter from the solicitor sent on 17 May 2017.  The mother’s solicitor seemed to indicate that the mother had in approximately February 2017 sought of the father to go back to the arrangements as contained in the final orders but in her evidence at paragraph 60, she seems to suggest that she made this request of the father in April 2017.

1. In paragraphs 44, 45, 47 and 48 of the mother’s Affidavit, she sets out in some detail the arrangements which according to her have been in place for most of 2016.  To summarise those arrangements, it appears on the mother’s evidence that the father would pick up and drop off the children to her home if he was spending time with them on the weekends; that on occasions he would pick up Y or A from preschool on the way to picking up X from school.

2. The mother says that the parents worked together well in the children’s best interests for about 12 months after the consent orders were entered into and the father was able to have the children on most alternate weekends.  The mother then says:

   If he wanted to see them for an evening during the week, he let me know which day suited him and I accommodated his availability. 

   I put the children’s needs for parents who co-operated rather than fought ahead of my own needs for privacy and space away from Mr Best, who continually called in unannounced or entered my home with the children when picking them up or dropping them off.  He usually lingered unnecessarily, telling me what was in their bags, despite me asking him to make our changeovers less protracted.  I found his intrusiveness extremely annoying but put up with it so the children would be settled.

3. At paragraphs 49, 51, 52, 53 and 54, the mother then sets out her own evidence as to some changes which occurred after January 2017 in the parents’ co-parenting relationship. But, in any event, despite the difficulties which the mother deposes to were present after January 2017, it appears on the mother’s evidence that she continued to facilitate significant and substantial time between the father and the children, which was in addition to, or different to, the time contemplated in the final orders of 2015.

4. Despite what is contained in the mother’s solicitor’s letter of 17 May and what is contained in the mother’s Affidavit at paragraph 60, while the mother has said she wished to revert to the alternate weekends and the one afternoon a fortnight as provided for in the December 2015 orders, it appears that perhaps this did not occur.  This is an inference that the Court draws from paragraph 63 of the mother’s Affidavit and also something which seems to be the subject of the father’s evidence in paragraph 28 of his Affidavit. 

5. The father’s evidence in relation to what time he spent with the children is contained in paragraphs 20 through to 27 of his Affidavit filed on 23 June 2016.  Essentially, he says that the children were spending time with him a couple of nights each week, which began on either Wednesday or Thursday, depending on his work commitments, and then on the weekends.  The father says that the arrangement was ad hoc and varied from week to week and that he still saw the children on at least four nights every week as he assisted with coaching in team sports and that they stayed with him, on average, two to three nights each week. 

6. This evidence, of course, is disputed in the mother’s case and is not something, as has already been mentioned, which the Court can make any findings about at this interim stage.  The parties’ conflicting positions are also evidenced by their statements in the father’s Application for Divorce and the mother’s Response to that Application for Divorce, those documents being the subject of evidence in the mother’s case and forming part of Exhibit 1 in the proceedings:

   a)The father in his Application for Divorce stated that there was unlimited voice contact, Friday to Monday every second week and either one to two nights mid-week depending on commitments, usually Wednesday and/or Thursday.

   b)The mother said in her Response flexible time as agreed and, failing agreement, 48 hours each alternate weekend and one evening per fortnight.  Parents have failed to agree and the mother has advised that time will revert to time failing agreement (refer to attached parenting consent orders).  That Response was dated 17 May 2017. 

7. It certainly appears from both parties’ evidence that the children have spent more time than contemplated for in the orders with the father throughout 2016 and, indeed, perhaps even for most of 2017 to date.

8. The Court received further written submissions from the mother since the hearing on 4 July, which was received on 5 July 2017. Those submissions go beyond the leave which was provided to the Court. In any event, the authorities which are referred to in those written submissions except for Morgan & Miles were final and not interim decisions.  Those decisions had the benefit of lengthy evidence which had been tested and upon which findings were made, and, for those Reasons, are decisions which are clearly distinguishable from the current proceedings.

9. By its very nature, an interim hearing is a curtailed hearing.  Evidence is limited, and the matter is decided on the papers.  The chronology in this matter, which was referred to at the very beginning of these reasons, is important.  This is not a final hearing.  The mother has moved the children’s residence in the full knowledge that the father objected to the move and in the face of the orders for equal shared parental responsibility made on 2 December 2016.  She did so notwithstanding the advice of her solicitors that the father had to be consulted. It appears that the move may have been surreptitious.  However, no such finding can be made at this interim stage of the proceedings. 

10. In relation to the submissions which were received in Chambers after the interim hearing on Tuesday earlier this week, the submissions which must have been made on instructions are as follows:

    That the mother has already moved places added burden on the court’s decision-making as the children have started at a new school and have been living in their new home since 30 May 2017.  If the mother is made to return the children as the father desires, they will be uprooted again, and there is no guarantee they will be re-enrolled in their previous school.  If the court orders the children back to (omitted), it is without doubt that the mother will be forced to find rental accommodation, and on the father’s proposed orders, this is to occur within seven days. 

    This is neither practical nor in the children’s best interests.  It is likely that the children’s home in (omitted) will be inferior to their current four-bedroom house in a semi-rural village with chooks and a vegetable garden in the back yard.  If the father’s interim application is successful, the mother intends to pursue her desire to relocate to (omitted) and could result in another upheaval for the children in the not too distant future. 

11. The submissions then go on to say:

    A forced move will have a significant negative financial impact on the mother and the inevitable unhappiness and frustration she will feel at not being able to pursue the move down the (omitted) as envisaged at the time she entered into the consent orders in December 2015 cannot be underestimated. This question was considered in Blanding & Blanding [2016] FamCAFC 21.

    A reference to what their Honours said in that decision is noted in the submissions. 

12. That, of course, was a final hearing and an appeal of a final hearing.  The difficulty with the submissions is that they are not the subject of, to some extent, any evidence and, to other extents, very limited evidence.  For example, there is no evidence whatsoever before the Court that the move will have a significantly negative financial impact on the mother or that she will suffer inevitable unhappiness and frustration. 

13. Indeed, the mother is the person who is solely responsible if there is any significant negative financial impact on her as a result of her unilateral move or she suffers what is termed to be “inevitable unhappiness and frustration” that she is not able to pursue what she wants to do.  The move was the mother’s own doing.  Any negative impact upon her is not a matter which is going to be given significant weight by this Court at this interim stage of the proceedings.  What is going to be given significant weight is what is in the children’s best interests. 

14. The children are still relatively young.  They have been moved from the only home that they have known.  They have not been able to express their views to an independent person such as a Family Consultant, even if such views were to be sought.  Their views are not known except as referred to in the parents’ evidence.  X is currently aged eight years and five months.  Y is aged five years and 10 months.  Whatever weight the Court might ultimately accord to their views is a matter for another day, but, in any event, they should be afforded and given the opportunity of providing whatever views they might have in an appropriate manner and at an appropriate time. 

15. The nature of the relationship of the children and each of their parents is such that the mother has been the children’s primary carer, not only but certainly, during the time post-separation. However, on both parties’ evidence, the father has had a significant involvement in the children’s care.  By virtue of the fact that he has been a person who has been in fulltime employment, whether as an employee or in his own business, the father has not had the opportunity to spend as much time with the children as the mother has.  That does not mean that he is not an interested parent or a parent who does not wish to have a significant involvement in the children’s lives. 

16. Both parents, up until very recently, have exercised their decision-making in relation to long term issues in relation to the children, spending time with the children and communicating with the children.  Both have parents have, it appears on the evidence, fulfilled their obligations to maintain the children.  That is a matter which the Court infers from the parties’ evidence because there is no evidence to the contrary. 

17. The likely effect of any change in the children’s circumstances either way is going to be significant, and what the Court is persuaded to do is to restore the status quo which was in place prior to 30 May, at least to the extent that it can be so restored, such that any relocation proposal, that is, a proposal for the children’s residence to be moved to a distance of some 150 to 165 kilometres away from their previous residence, can be a matter which is appropriately assessed by the Court after it has been the subject of evidence which can be tested and after the Court can come to a full and informed view whether such a move is, in fact, in the children’s best interest.  What the mother has attempted to do, it appears from the evidence, is to pre-empt the Court’s decision, and this much is apparent from the submissions which were made on her behalf.  While there may be some practical difficulty in the orders which the father seeks in relation to the children spending time or living with the mother, that is a matter which the Court, while giving some weight, does not consider to be of significant weight, such as that it would tip the scale in the mother’s favour.

18. The Court considers that the important relationship which the children have been able to have with their father post-separation, particularly given their relatively young ages, may be detrimentally affected by the mother’s unilateral move, because it prevents the children from having their father engaged in their after school activities, their extracurricular activities, and indeed it will put the children in circumstances where they will have to travel significant distances of time to spend alternate weekends with their father.  The after school time which the orders of 2 December 2015 contemplate and provide for are certainly something which is going to be rendered nugatory, or has been rendered nugatory, by the mother’s unilateral relocation of the children’s residence.

19. The mother, in her evidence and in her submissions, also referred the Court to what was termed “X’s anxiety”, and that is the subject of some annexures or rather part of the exhibit tendered in the mother’s case.  There is a letter dated 17 May 2017 addressed to a doctor from (omitted) Medical Clinic which seems to suggest that X is suffering from some anxiety, but that letter certainly seems to have been written perhaps after the mother had made certain representations to that general practitioner.  It suggested there is a background history of recent parental separation, shared time with the father, that X has had issues with the father claiming that the mother is taking them away from his father and that he does not agree with this.  It states that “but the implications tends to cause anxiety within himself, and he feels responsible for his sisters, as well”.

20. It is difficult to understand why and how the General Practitioner who wrote that letter on 17 May 2015 seems to have been of that view, because there is certainly no evidence in the mother’s case about what X might have said to the General Practitioner or, indeed, if he was examined and did say any such things to the General Practitioner. 

21. This Judgment is being delivered orally today on the morning of day five of what has been an extremely busy duty week. 

22. The urgent interim hearing in this matter was heard on Tuesday morning this week amongst a significant number of other urgent applications, mostly seeking recovery orders.  Over the last four days, 86 matters have come before this Court.  Today will be just as busy with seven matters listed for interim hearing, five for directions and, including this one, three for judgment.  The judgment in this matter has taken over an hour to be delivered orally. 

23. The Court makes these comments not to obtain sympathy from the parties about how busy the Court is but to ensure that the parties understand that the Court has tried its best to take into consideration all of the relevant matters in the very limited time that it has had available this week.  While the hearing of the father’s interim application could have been adjourned and delayed and judgment could have been reserved to a further date, given the urgent nature of this application, the Court did not consider any further delay to be in the children’s best interests. 

24. The absence of any discussion of a particular section 60CC factor or any particular matter referred to by Boland J in Morgan & Miles does not reflect any failure to consider it. Rather, it is reflective of the Court’s assessment that such factors either have limited relevance in the circumstances of this case or the Court has simply not had the time to address each and every one of them in detail in the oral reasons. But certainly the Court’s mind was turned to each relevant section 60CC factor and each of the considerations raised by Boland J in Morgan & Miles. 

Conclusion

1. For all of those reasons and noting that there is already an order for equal shared parental responsibility made on a final basis in December 2015 and noting that the mother seeks an order for equal shared parental responsibility, the order made in respect of equal shared parental responsibility on 2 December 2015 will not be disturbed.  Otherwise, the Court makes the following orders.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  7 July 2017