Braun and Bolinger
[2009] FMCAfam 1415
•23 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRAUN & BOLINGER | [2009] FMCAfam 1415 |
| FAMILY LAW – Parenting – interim – mother unilaterally relocates with children aged 8 and 6 to [P], Western Australia – order to return children to greater Melbourne area pending further order. |
| Family Law Act 1975, ss.60B, 60CA, 60CC(2), 60CC(3), 60CC(4) |
| Goode v Goode (2006) FLC 93-286 |
| Applicant: | MR BRAUN |
| Respondent: | MS BOLINGER |
| File Number: | DGC 2363 of 2009 |
| Judgment of: | Monahan FM |
| Hearing date: | 23 December 2009 |
| Date of Last Submission: | 23 December 2009 |
| Delivered at: | Dandenong |
| Delivered on: | 23 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Harrison |
| Solicitors for the Applicant: | Duffy & Simon |
| Solicitor for the Respondent: | Ms Gan |
ORDERS
The Wife return the children [Y] born [in] 2003 and [X] born [in] 2001 (“the children”) to Melbourne or the Greater Melbourne area on or before 20 January 2010.
The children shall communicate with the Husband by telephone at times as agreed by the parties, and failing agreement twice weekly on Monday and Thursday at 8.30 pm to 9.30 pm Eastern Standard Summer Time (being 5.30 pm to 6.30 pm Western Standard Summer Time).
All extant applications be adjourned to the Duty List on 22 January 2010 at 9.45 am for Directions (“the adjourned date”).
In the event that the Wife has not returned the children as required by Order 1 herein by 20 January 2010, the Husband has liberty to seek a Recovery Order on the adjourned date.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Braun & Bolinger is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 2363 of 2009
| MR BRAUN |
Applicant
And
| MS BOLINGER |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 17 December 2009 by the husband
Mr Braun (“the father”), against the wife, Ms Bolinger (“the mother”). The father is seeking various parenting orders in relation to the children of the marriage, [X] born [in] 2001 and [Y] born [in] 2003 (“the children”). More specifically, the applicant is seeking a recovery order in respect of the children, although it is clear today that what he is now seeking is a positive injunction directed at the mother to return the children to Melbourne.
The applicant father’s application is supported by his affidavit sworn and filed on 17 December 2009 and he is legally represented by
Mr Harrison of Counsel today. The respondent mother in her response filed by fax today, 23 December 2009, opposes the orders sought by the applicant and is seeking different parenting orders in relation to the children. More specifically, the respondent is seeking final and interim orders that would allow her to remain in Western Australia and otherwise for the father to spend time with the children during their school holiday time. In other words, the mother is seeking to relocate to Western Australia with the children albeit retrospectively given that she has already done so. The respondent mother relies on her affidavit produced to the Court today by her lawyer in draft form only but not as yet sworn. The respondent is legally represented by her solicitor,
Ms Gan, who I granted leave to appear by phone today.
Background
The parties describe their relationship in their respective affidavits. The parties seem to be in agreement that they were in a relationship between 2000 and 2005 and were married in 2002. That marriage produced two children, [X] now aged nine and a half and [Y] who is nearly six and a half. The mother also has a child called [Z] from a previous relationship.
There are no existing orders in place with respect to parenting matters and the only preceding order was an order made in the Magistrates’ Court at Dandenong in 2005 with respect to an intervention order granted in favour of the mother against the father which expired after 12 months. The father alleges he consented to the intervention order without admissions and that it was never breached.
Issues today
The dispute today focuses on whether the children should be returned to Melbourne and thereafter for the Court to consider whether the mother should be able to relocate with the children to Western Australia or whether they should remain long term in the greater Melbourne region.
The consequences of either order would be a decision as to who the children lives with and who the children spends time with.
Agreed and disagreed facts
The parties agree that the father was not consulted about the mother’s recent relocation to [P] in Western Australia.
The parties disagree over the level of the father’s involvement with the children since separation and in recent times, although the father does acknowledge being more active in terms of the children’s lives in more recent times than following separation. They also disagree over whether the father has physically threatened the mother in the past and about allegations of past domestic violence.
The parties’ submissions
Mr Harrison for the father submitted that the mother had made a unilateral decision to move across Australia with the children. She had not consulted at all with the father about her decision and seems to have done so in a hurried fashion. He also argued that her motives for the move remain somewhat unclear. He submitted that the best interests of the children demanded that they be returned to Melbourne or the greater Melbourne region so that the parties could be put in the position they were before the mother’s unilateral move and thus allowing the mother to pursue her application for relocation in proper form.
Mr Harrison also indicated his client was realistic about the need for the mother to make appropriate plans to return to the greater Melbourne region and submitted she be given approximately four weeks to effect same. In the meantime the father would be seeking telephone time with the children and proposes two to three times a week at about 8.30 pm Melbourne time eastern standard summertime, which would be around 5.30 pm western time.
Ms Gan for the mother made the following points:
·firstly, her client alleges that the husband has only spent a small amount of time with the children since separation, indeed, that the wife has shouldered virtually 100 per cent of the responsibility for maintaining and raising the children since separation and that it has not been shared in any meaningful way;
·secondly, that the wife was motivated in part in her relocation by the husband’s alleged threat made to the wife in the presence of the children. In this respect she submitted to the Court that there was a relevant history here that necessitated an intervention order being made in 2005;
·thirdly, she relied on the husband’s email sent in August 2008, which is annexed to the wife’s proposed affidavit, that demonstrates a past decision by the husband to distance himself from the children; and
·fourthly, she submitted that the children will benefit from the move.
The law
The Full Court of the Family Court decision of Goode v Goode (2006) FLC 93-286 (“Goode”) guides the Court’s approach to making interim decisions and interim orders in relation to parenting disputes. At paragraph 81 the Full Court noted:
“In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.”
This matter is such a case. More specifically, it raises the reality that the Court cannot fully or meaningfully determine issues of credit today as the evidence being presented by the parties to the Court has not been tested by cross‑examination. That having been said, in the same paragraph, that is paragraph 81 of the Goode decision, the Full Court went on to say:
“However, the legislative pathway must be followed.”
In other words, the relevant provisions of the Family Law Act 1975 (“the Act”) post the 2006 shared parenting amendments must be followed in an interim hearing.
There is considerable animosity, it would appear, between the parties in this case and no doubt the history of the matter will be the subject of evidence in cross‑examination at a final hearing should such be needed.
There is no issue of equal shared parental responsibility to be determined today. The dispute is as to whether the children should be required to be returned to Melbourne or the greater Melbourne region until the Court can consider the merits of the mother’s request to relocate to Western Australia and the consequences to their spending time with their father should that relocation be permitted.
The Full Court at paragraph 82 of the Goode decision sets out the approach that the family law courts must take in determining interim cases. The starting point is to identify the competing proposals, identify the issues in dispute and identify any agreed and uncontested relevant facts. I have previously noted those matters this afternoon. At this point I also note that section 60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.”
To determine the child’s best interests the Court must consider the primary considerations or factors set out in section 60CC(2) of the Act and the additional considerations referred to in subsection (3) of section 60CC where relevant. I will canvass these briefly now.
The primary considerations
Firstly, under section 60CC(2)(a) the Court is required to consider:
“the benefit to the child (or children in this case) of having a meaningful relationship with both of the child’s parents.”
At this point let me note that “meaningful” does not mean equal but it clearly signifies that both parties should be involved with their children and consequently signifies an expectation of time to be spent. The right of a child to spend time with each parent and extended family is a right clearly enunciated in section 60B of the Act. This is really at the centre of the dispute today.
Secondly, the Court is required under section 60CC(2)(b) to consider:
“the need to protect the child (or the children in this case) from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
There is no doubt that it would be in the children’s best interests to develop a meaningful relationship not just with their mother but with their father. That needs to be balanced, however, in respect of protecting the children from any physical or psychological harm and the like. Given the nature of the allegations here, the Court is satisfied there is a need to test the issues of whether the children have in any way been psychologically harmed by whatever statements may have been made in the children’s presence.
The additional considerations
As to the additional considerations, it is worth noting that under section 60CC(3) the Court is required to consider, where relevant, issues such as the “views expressed by the child”. These are again matters that will need to be tested at a final hearing should such be needed. On the evidence of the parties submitted today there is some disturbing statements being made by the children. These statements need investigation. The Court also needs to be informed as to the children’s views about the mother’s relocation.
As to “the nature of the relationship of the child(ren) with each of the child(ren)’s parents”, again we have different stories here and the parties’ evidence needs to be tested. As to the “willingness and ability of each of the child(ren)’s parents to facilitate, and encourage, a close and continuing relationship between the child (or children) and the other parent”, that is a crucial factor here. The mother made a unilateral decision to withhold the children from their father, but of course there may be violence considerations that may explain her actions. These issues need to be tested.
As to the section 60CC(4) consideration of the extent to which each of the parties have “fulfilled, or failed to fulfil, [their] responsibilities as a parent…”, again we have different stories here. These stories also need to be tested, but that having been said, there are issues raised with children being withheld from parents for whatever reason.
Also the Court is required to consider “the likely effect of any changes in the child’s circumstances”. Clearly there needs to be some change here. The present situation cannot continue. We cannot have children being spirited off by various parents for whatever reason without a proper examination of the reasons for it.
Lastly, in relation to “any other fact or circumstance”, the Court notes that both children have been spending some time with their father during 2009 despite the father’s email of August 2008.
Conclusion
After considering the limited evidence and the parties’ submissions in light of the structured discretion in the Act, I have formed the view that the children’s best interests would be served by an order for the mother to return the children to Melbourne or the greater Melbourne region on or before 20 January 2010. In the event that she does not relocate with the children, the children would live with their father until further order and the mother’s time with the children would be reserved to a further hearing date that I will propose in a moment. In the event that the mother does relocate back with the children, then the father’s time with the children shall be as agreed between the parties or otherwise reserved to a future court date.
The Court proposes returning the matter to the Melbourne registry, as the Dandenong registry will not be open during January, for mention and directions in the duty list before McGuire FM on Friday 22 January 2010 at 9.45 am. In the event that the mother has not returned the children by 20 January 2010, the father will be at liberty to request the Court to issue a recovery order for their return. I would encourage the parties to have relationships counselling in the interim. The parties might also benefit from counselling under section 11F of the Act. I will let McGuire FM consider this issue when the matter returns on 22 January next year.
Consequently there will be an order today requiring the mother to return the children or return with the children if she so wishes to Melbourne or the greater Melbourne region on or before 20 January 2010. Until further order the children shall communicate with the father as agreed and failing agreement, twice weekly Mondays and Thursdays from 8.30 pm until 9.30 pm Eastern standard summertime. That would be 5.30 pm to 6.30 pm Western time. Otherwise the matter will be adjourned for mention and directions before the Court at 9.45 am at the Melbourne registry on 22 January 2010.
I reserve my right to settle my reasons for this decision.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Monahan FM
Deputy Associate: M. Raggatt
Date: 20 January 2010
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