Bourke and Alves

[2014] FCCA 2680

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOURKE & ALVES [2014] FCCA 2680

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – relocation – where mother seeks to relocate child’s residence from Sydney to Adelaide – parental responsibility – equal shared parental responsibility – best interests of the child – child aged 7 years 11 months.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 62G, 65DAA

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Mazorski & Albright [2007] FamCA 250; (2008) 37 Fam LR 518

Applicant: MR BOURKE

Respondent: MS ALVES

File Number: SYC 4395 of 2014

Judgment of: Judge Scarlett

Hearing date: 4 November 2014

Date of Last Submission: 4 November 2014

Delivered at: Sydney

Delivered on: 5 November 2014

REPRESENTATION

Counsel for the Applicant: Ms Kennedy

Solicitors for the Applicant: The Norton Law Group

Solicitor for the Respondent: Ms Relator

Solicitors for the Respondent: Walker Kissane and Plummer

ORDERS

1. The Applicant Father and the Respondent Mother are to have equal shared parental responsibility for the child X born (omitted) 2006.

2. The child X is to live with the Mother.

3. The Mother is restrained by injunction from relocating the residence of the child X from a radius of 30 kilometres from (omitted) Primary School.

4. The child X is to spend time with the Father as follows:

   (a)Each alternate weekend during the school term commencing on 7 November 2014 from 4:30 pm on Friday until the commencement of school on the following Monday morning PROVIDED THAT if the Monday immediately after the weekend is a public holiday then until the commencement of school on the Tuesday morning;

   (b)On the weekend that includes Father’s Day from 4:30pm on the Friday until the commencement of school on the following Monday;

   (c)For half of each school holiday period by agreement or failing agreement for the second half commencing at 9:00am on the middle Saturday of the school holiday period;

   (d)For a period of two (2) hours on the child’s birthday;

   (e)From 10:00 am on Boxing Day 26 December 2014 until 6:00 pm on 27 December 2014; and

   (f)From immediately after school until 7:00 pm on the father’s birthday.

5. Notwithstanding the provisions of Order (4)(a) above the child will not spend time with the father on the weekend that includes Mother’s Day in each year.

6. Each party is restrained from discussing the proceedings with the child or allowing any other person to do so in the presence or hearing of the child. 

7. The parties are to attend upon a Family Consultant at a time and on a date nominated by the Director of Child Dispute Services at the Sydney Registry of the Court for the purpose of preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975. 

8. The Application is listed for Final Hearing at 10:00am on 22 April 2015 to continue until 23 April 2015.

9. The Applicant is to pay the setting-down fee or obtain a reduction of that fee by 2 April 2015

10. The parties are to file and serve all affidavits upon which they seek to rely no later than 2 April 2015 and no affidavits will be accepted for filing after that date without leave of the Court.

11. The parties are to advise the Court no later than 13 March 2015 whether the Family Consultant who prepared the Family Report will be required for cross-examination.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYC 4395 of 2014

MR BOURKE

Applicant

And

MS ALVES

Respondent

REASONS FOR JUDGMENT

1. The application before the Court is for interim orders relating to the Respondent mother’s wish to relocate the residence of the parties’ child X from Sydney to Adelaide. 

2. The Application was heard yesterday as an interim hearing.  The moving party seeking the interim hearing was the Respondent who is, of course, the person seeking the relocation. The Applicant does not consent to the relocation.  That situation remained throughout the proceedings yesterday.

Orders Sought

1. The Respondent mother, in a Minute of Orders tendered to the Court, sought orders until further order, being interim orders, which provided in summary that:

   (1)    The mother and the father should have equal shared parental responsibility for the child X.

   (2)    That the child be permitted to relocate to Adelaide.

   (3) That the child should live with the mother in Adelaide and spend time with the father on various occasions as set out in that order.

   (4) That the child should spend time with and communicate with the mother on the certain occasions set out in that order.

   (5) That the child would celebrate her birthday with the parent with whom she is spending time and would speak to the other parent by the telephone.

   (6) That the mother would pay for the child’s return airfare from Adelaide and Sydney.

   (7) That school holidays referred to would be the South Australian Department of Education and Training prescribed holidays.

   (8)The mother would have responsibility for making decisions about day to day issues of the child.

   (9) The parties would notify each other of any serious illness or injury concerning the child and a variety of other ancillary orders including a restraint on the mother from changing the child’s current school without the written consent of the father or a court order.  That order is, perhaps, problematic noting that the child is currently attending school in Sydney.

2. The father sought quite different orders on an interim basis.  He sought:

   (1)That the mother should be restrained from relocating the child’s residence from a 20 km radius from (omitted) Primary School.

   (2) That the parents should be restrained from changing the child’s school.

   (3)That the child should live with the mother.

   (4) The child should spend time with the father on occasions set out in the order.

   (5)The parties should be restrained from discussing the proceedings with the child or allowing any other person to do so.

Relocation Applications

1. Relocation applications, whilst they are parenting applications, contain certain inherent problems when being heard on an interim basis.  In that way they are, perhaps, similar to applications to change a child’s name or applications to change the residence of a child from one party to another.  If they are applications made in interim proceedings there is always the risk that at a final hearing orders would be made reversing the interim orders which could possibly lead to a change in the child’s circumstances that may not be in the child’s best interests. 

2. That does not mean that such orders are never made on an interim basis.  It is certainly the case that where the Court considers that in the best interest of the child orders are made varying the residence of the child on an interim basis.  Indeed, I have made two such orders in serious circumstances in the last month, although they were most unusual cases.

3. At times a name change order can be made in interim proceedings where there are particular circumstances that would justify making such a drastic step at an interim hearing.  It is not unknown but it is unusual for the Court to make an interim order permitting the relocation of the residence of a child.

Issues

1. The mother wishes to relocate to Adelaide as soon as she can because the gentleman with whom she is in a relationship, and a committed relationship, has indeed relocated to Adelaide where he has family and has obtained employment there.  It is the mother’s case that there are pressing economic reasons for the entire family to live in Adelaide rather than Sydney.  The cost of housing being a very obvious example.

2. At present the mother’s immediate family that she has with her partner is split in that she is here in Sydney – not only with the child the subject of these proceedings, X, but with the baby daughter that she now has as a result of her relationship with her partner, Mr B.

3. Obviously it is an unsatisfactory situation for her and her partner to be running two households in different states.  The mother says that she has no support of any substance in Sydney and she wishes to relocate to Adelaide with both children as soon as possible.

4. However, the arguments for the father which were made by Ms Kennedy of Counsel yesterday were that it would be premature and not in this little girl’s interests to make an interim order permitting relocation.  The Court’s attention was drawn to a psychological report prepared by Ms R relating to this child.  It is clear that from the report this little girl suffers from issues of anxiety relating to the situation in which she finds herself. 

5. I note that in the summary and recommendations that appear on page 19 of the report a paragraph 19, Ms R the psychologist, stated:

   X’s personality, age and good attachment with both parents has meant that she has been susceptible to this underlying conflict and has reacted with distress and anxiousness.  In regards to relocating to Adelaide, X’s mental health will largely depend on the ability to maintain a meaningful relationship with both parents regardless of at what developmental stage this relocation is made. 

   It is certainly not in the best interests of the child to diminish the close relationship she has with both her father and half-brother Y .  And if relocation were to occur at any point in time then it would have to be clearly thought out to avoid this.

6. I might indicate that I have also been referred to the decision of Brown J in the Family Court, the matter of Mazorski & Albright.[1]

   [1] [2007] FamCA 250; (2008) 37 Fam LR 518

7. The other point that was made by Ms Kennedy of Counsel is that there is no family report at this stage in existence which would normally be desirable if not essential in a relocation matter.  The very nature of an interim hearing is that evidence cannot be tested by cross-examination and the Court is in no position to make factual findings on disputed issues of fact.  This is a matter that was clearly referred to by the Full Court of the Family Court in the well known decision of Goode & Goode[2].

   [2] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

8. In short, it is the father’s contention that he has a good relationship with this child, a strong, positive and meaningful relationship with this child, just as the mother does.  He contends that it is premature to permit an interim relocation without a proper exploration of the issues relating to the best interests of the child. 

9. It is, of course, the fact that the Court is required by section 60CA of the Family Law Act 1975 (Cth) to regard the best interests of the child as the paramount consideration. In doing so, the Court looks at the provisions of section 60CC to determine what matters are in the child’s best interests. It is certainly the case that one of the primary considerations in subsection (2) of section 60CC is the benefit to the child of a meaningful relationship with both parents.

10. There is, to my mind, no reason why the Court would not make an order that the parties should have equal shared parental responsibility for their daughter, as the mother submits (s.61DA). This is not, however, a case where equal time with each parent is sought by either party, although it would appear that the time spent by the child with the father is reasonable close to the definition of substantial and significant time (s.65DAA)  

11. In my view it would, indeed, be premature to permit an interim relocation of the child’s residence because it is a difficult task to persuade a court, as I have mentioned, and in my view it would not appear to be in the best interests of the child to permit this state of affairs to occur without a proper examination and a testing of the evidence relating to the matter.

12. The mother’s application to relocate until further order will not be successful.  I will orders until further order to that effect.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  19 November 2014