BYER & FRANK

[2015] FCCA 1744

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYER & FRANK [2015] FCCA 1744

Catchwords:
FAMILY LAW – Family Law Act 1975, Part VII – parenting and property – unilateral relocation with the child – application for child to be returned to Melbourne granted.

Legislation:

Family Law Act 1975, ss.60B, 60C, 60CC(3), 60I and 65AA, 65D

Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; (2006) 206 FLR 212; [2006] FLC 93-286

Applicant: MS BYER

Respondent: MR FRANK

File Number: MLC 1489 of 2015

Judgment of: Judge Riethmuller

Hearing date: 26 May 2015

Date of Last Submission: 26 May 2015

Delivered at: Melbourne

Delivered on: 26 May 2015

REPRESENTATION

Counsel for the Applicant: Ms Baczynski

Solicitors for the Applicant: Anthony Rose & Mainwaring

Counsel for the Respondent: Ms Dellides

Solicitors for the Respondent: Blackwood Family Lawyers

ORDERS

1. The matter be adjourned to a date to be fixed for final hearing with an estimated hearing time of two days.

2. Each party ENSURE that their Application/Response seeks a superannuation splitting order (at least in the alternative) AND, if necessary, file an amended application or response, within 28 days, setting out the potential splitting orders and serve same on the other party(s) and relevant superannuation fund(s) (together with notice of the conciliation conference date and trial date).

3. The parties (and, if represented, their legal representatives) attend a Conciliation Conference with a Deputy Registrar of the Federal Circuit Court of Australia at the Melbourne Registry on 21 September 2015 at 9.15am.

4. The parties’ solicitors (and if they are unrepresented, the parties themselves) send to the other, and the nominated organisation, at least 7 days before the conciliation conference, copies of:

   (a)an outline of case document in the form set out below in the trial directions;

   (b)a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;

   (c)a copy of the actual terms of orders required to give effect to their settlement proposal; and

   (d)written confirmation by each party or their solicitor that:

   (i)all relevant documents have been exchanged between the parties; and

   (ii)the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.

5. In the event that the matter does not settle at the conference and the parties have not complied with orders (a) to (d), the Registrar is directed to contact the chambers of Judge Riethmuller, prior to the end of the Conciliation Conference, in order to urgently list the matter before Judge Riethmuller for further directions and submissions with respect to costs.

6. The fee for the Conciliation Conference be paid for by the parties in equal shares.

7. Pursuant to s.62G(2) of the Family Law Act1975, the parties and the child X born (omitted) 2010 (‘the child’), attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report to be given to the Court no less than 35 days before the hearing date and that:

   (a)The Family Report address the matters relevant to ss.60CC, 61DA and 65DAA of the Family Law Act 1975 and any other matters that the Family Consultant considers important to the welfare or best interests of the child including the mother’s proposal to relocate the child’s residence to (omitted), NSW;

   (b)The parties comply with all reasonable directions of the Family Consultant.

   (c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court.

   (d)That within 7 days of being notified of the family consultant, the solicitor for each of the parties (or, if unrepresented, then the party themselves) deliver to the family consultant copies of the following documents:

   (i)all relevant applications, responses and relevant affidavits filed by or on behalf of his/her client in the within proceedings; AND

   (ii)any intervention or restraining orders currently in force.

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

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

   (a)A Children’s Court;

   (b)A child protection authority;

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

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

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

11. The parties have leave to amend their application and response PROVIDED the amended application or response is electronically filed and served no later than 28 days before the trial.

12. The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court) AND

    (a)The applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 21 days prior to the trial; and

    (b)The respondent electronically file and serve any further affidavits to be relied upon by the respondent at the final hearing not later than 14 days prior to the trial.

13. Each party be permitted to rely upon only one affidavit by each the parties and each witness unless:

    (a)the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit of affidavits; or

    (b)the party has first obtained leave of the court.

14. Not later than 4.00pm two business days prior to the trial the solicitor for each party (or the party themselves if unrepresented) electronically file and serve an Outline of Case Document (not exceeding 5 pages) in the following format:

In relation to property matters:

(a)a list of the material relied upon;

(b)a brief chronology listing significant events;

(c)a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;

(d)main contentions on disputes as to:

(e)inclusion of items in the pool; and

(f)the value of items where the value is in dispute;

(g)a list of contributions claimed or contended for and the % assessment on contributions contended for;

(h)a list of other factors relied upon (s.75(2) factors) and % adjustment contended for;

(i)any further factors relevant to determining a ‘just and equitable’ division of property.

In relation to parenting matters:

(j)a list of the material relied upon;

(k)a brief chronology listing significant events;

(l)a list of the significant factual issues requiring determination;

(m)a list of contentions with respect to each of the significant factors relevant to determining the best interests of the child (s.60cc factors);

(n)a list of contentions relevant to the operation of s.65daa; and

(o)a list of any other contentions relevant to the decision.

1. That no party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the court.

2. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the  Family Law (Fees) Regulation 2012.

3. Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, it is certified that it was reasonable for the parties to employ an advocate.

4. The parties have equal shared parental responsibility for the child.

5. The mother do all acts and things necessary to relocate the child’s residence back to Metropolitan Melbourne within 35 days (30 June 2015).

6. The mother, her servants and agents are hereby restrained from changing the child’s residence from the State of Victoria without the consent in writing of the father or Order of this Honourable Court.

7. The child live with the mother.

8. Upon the child’s return to Metropolitan Melbourne, each party will do all acts and things necessary to enrol the child at any kindergarten program as may be agreed between the parties in writing, near the mother’s residence in Melbourne.

9. The child spend time with the father:

   (a)From 5 pm Friday to 5 pm Sunday each alternate weekend commencing the first weekend following her return to Melbourne

   (b)From 9 am to 5 pm Sunday commencing the fortnight after her return to Melbourne.

   (c)For one half of all school term holidays at times to be agreed between the parties and in default of agreement, from 5.00pm on the last day of school until 6.00 pm on middle Saturday of holidays.

   (d)From 9.00am on the father's birthday (omitted) until 5.00pm.

   (e)From 9.00am on Father’s Day until 5.00pm.

   (f)From 2.00pm on the child’s birthday (omitted), or 5.00pm if a weekday, until 9.00am the following day.

   (g)During the summer school holidays in 2015/2016, from 5.00 pm 26 December until 5.00pm 8 January 2016

   (h)At Christmas for 2015 from 11 am Christmas Day to 5 pm Boxing Day

   (i)As may otherwise be agreed between the parties.

10. The child’s time pursuant to paragraphs 23(a) and (b) be suspended during all school holidays and recommence at the beginning of each school term as if not interrupted by the holidays.

11. Notwithstanding paragraph 23 above, the child shall remain in care of mother as follows:

    (a)At Christmas for 2015 from 12.00 pm Christmas Eve until 11.00 am Christmas Day.

    (b)From 9.00am until 5.00pm Mother’s Day.

    (c)From 9.00 until 5.00pm on (omitted) (the mother's birthday).

    (d)From 2.00pm on the child’s birthday (omitted), if the child is not otherwise in the mother’s care on that day, until 9.00am the following day.

12. Changeover shall occur at the mother’s residence when changeover does not occur on a day the child is at kindergarten or day care.

13. Each party provide to other at least 28 days written notice of any proposed change to their residential address

14. Each party keep each other informed of their current telephone number and email details and advise the details of any changes within 48 hours of a change in any of those details.

15. Each party keep the other informed of any significant illness or accident suffered by the child when in his or her care and as soon as practicable, advise the other of any treating health practitioner and authorise such treating health practitioner to discuss the child’s welfare with the other party.

16. Each party do all things to authorise any kindergarten or school attended by the child to send to both parents copies of:

    (a)order forms for the child’s kindergarten or school photos.

    (b)notices of kindergarten or school functions such as parents/teacher interviews, concerts and sports days.

17. The father pay:

    (a)a Residential Tenancy Bond up to $1,750

    (b)4 weeks rent in advance of up to $1,750

    (c)monthly rental costs of up to $1,750 directly to the real estate agent or landlord in relation to rental accommodation secured by the mother within 35 days.

18. The father pay to the mother the sum of $1,000 within 7 days.

19. The question of characterisation of the amounts in these orders be reserved to the trial judge.

20. All extant applications for interim relief be otherwise dismissed.

21. The parties agree that the mother and child shall holiday out of Victoria during the long summer holidays.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1489 of 2015

MS BYER

Applicant

And

MR FRANK

Respondent

REASONS FOR JUDGMENT

1. The proceedings in this matter commenced on 25 February 2015, when the applicant mother brought de facto property proceedings seeking a property settlement and maintenance “as the Court deems fit.” The mother’s Initiating Application did not particularise the ambit of the claim. 

2. The mother’s application was supported by a Financial Statement setting out that she had stored her furniture at (omitted) Self Storage, had $1,200.00 in the bank and had household contents worth $22,680.00. The Financial Statement stated that she believed there was an investment in a (omitted) development trust of an unknown value.  The Financial Statement additionally stated that the mother had a financial resource, an interest in the Frank Family Trust, an amount also of unknown value. 

3. In her statement of expenses at Part N of her financial statement, the mother sets out that her weekly expenses for herself and her child, not yet of school age, were $2,856.00 per week not including rent.  These expenses included $750.00 per week for food, $150.00 for household supplies, $150.00 per week for gas, $150.00 per week for electricity, $60.00 for heating fuel, $120.00 per week for the telephone, and $200.00 per week for petrol.  It is difficult not to see the figures as ridiculous and it is troubling to note that the statement was prepared by the mother’s solicitor.

4. In her supporting affidavit sworn 19 February 2015, the mother states that she is 30 years of age and not working and that the respondent father, aged 36 years, is a (occupation omitted) and is engaged in full time employment.  On the mother’s version of events, the parties met in 2009 and formed a relationship with a shared premises in (omitted) in Melbourne.  According to the mother, the respondent left the (omitted) premises on 1 March 2013 and the parties separated.  There is one child of the relationship, X, born (omitted) 2010.

5. Whilst Counsel for the mother stated from the bar table that the mother had been working in the last year, her affidavit material states that she had 18 hours of work per week between September 2011 and December 2013, but that she was not working at the time she swore her affidavit.  Paragraph 9 of the mother’s supporting affidavit sworn 19 February 2015 sets out that the respondent had told her that a house that is in his parents’ name was his house, that the parties could move into it and that when their finances were more stable the parties could take out a bank loan to purchase the balance of the property from his father.

6. Despite claims by Counsel from the bar table that there was a constructive trust in the mother’s favour, there was nothing in the contents of this affidavit that appears to give rise to any equitable interest in the parents’ property by the mother.

7. In the following paragraphs of the affidavit, the mother sets out the basis upon which the respondent may have an equitable interest in the property she refers to, stating at paragraph 12 that she has lodged a caveat over the property claiming an interest pursuant to a constructive trust.  Remarkably, despite lodging a caveat, the mother did not join the title holders in these proceedings, nor is there any material before me to indicate that the mother has brought proceedings in the state courts.

8. Without referring to the amount and without making complaint, the mother states that the respondent pays her child support as assessed by the Child Support Agency. The mother also states that she is the recipient of a single parent pension.  She also says that she was required to vacate the property at (omitted) pursuant to orders made by consent at a VCAT hearing.

9. Importantly, for the purpose of today’s application, the mother says:

   17.  I would like to continue to reside in Melbourne but cannot afford the rent hence the reason I have taken up temporary residence with X at my parents’ home in (omitted)..

10. There is no reference in any of this material to parenting orders nor is there anything to indicate that the mother was not intending to return to Melbourne. 

11. On 15 May 2015, the respondent filed a Response seeking parenting orders providing for the child to live with the mother, for the parties to have equal shared parental responsibility and for a spend time regime for the child to spend time with the father.  The orders in this regard, as proposed by the respondent, were set out in detail (three pages) in the Response.  The respondent also set out in detail (over two pages) his proposal with respect to property settlement. The respondent also sought urgent interim orders providing for the child be returned to Melbourne. 

12. The respondent has filed a Financial Statement stating that he earns around $3,512.00 per week and that he owns minimal assets.

13. In the respondent’s supporting affidavit sworn 14 May 2015, he sets out that the mother moved to Melbourne when she was 19 years of age, some 11 years ago.  He says that the parties separated sometime either in late February  2013 or early March 2013, at which time he moved back into his parents’ home and the mother remained living in the (omitted) property which was owned by his parents. 

14. The respondent now lives in a rental property in (omitted) with his current partner.  He explains that he had been seeing the child from 5.00pm Friday to 5.00pm Sunday each alternate week and from 9.00am to 5.00pm on Sunday each alternate week and for long periods in kindergarten holidays.

15. It was only on 25 May 2015, following the parenting application by the respondent that the mother lodged a Reply seeking orders that the child live with her in (omitted), New South Wales. In her Reply, the mother also sought that the child spend half of the kindergarten and school holidays with the father with changeover to occur at Sydney Airport and that the costs of the flights be borne equally between the mother and father. 

16. In her affidavit sworn 25 May 2015, the mother agreed that the father had been seeing the child from 5.00pm Friday to 5.00pm Sunday each alternate week and from 9.00am to 5.00pm on Sunday each alternate week. The mother denied the father’s claim that he spent longer periods with the child in kindergarten holidays.

17. Crucially, at paragraph 17 of his affidavit, the father states:

    17. On 18 January 2015:

    a)Ms Byer told me that she and X were flying to the (omitted) on19 January 201 to spend a short amount of time with Ms Byer’s parents who live in (omitted), NSW (‘(omitted)’).

    b)Ms Byer [sic] told me that she wanted to go to (omitted) for a holiday and to see her brother Mr D, who had injured his arm.

    c)I asked Ms Byer when she would be returning to Melbourne with X. Ms Byer refused to say when she would be returning to Melbourne with X.

    d)I was opposed to Ms Byer taking X to NSW on 19 January 2015. I sent an email to Ms Byer on 18 January specifically saying that I did not agree to Ms Byer taking X to New South Wales.

    e)On 19 January 2015, Ms Byer flew with X to the (omitted) and then travelled on to (omitted) in New South Wales. Since then X has been in (omitted).

    f)Ms Byer told me that she would be back in Melbourne by 27 January 2015 for a scheduled mediation with me. Ms Byer did not return to Melbourne by 27 January 2015.

    g)Ms Byer’s father, Mr R (‘Mr R’) told me that Ms Byer would return to Melbourne on 30 January 32014 to look for a new home in Melbourne for them to live in. Ms Byer came down to Melbourne on 30 January for a couple of days. I asked to spend time with X and Mr R told me that Ms Byer had left X in (omitted) when Ms Byer came down to Melbourne.

    h)To the best of my knowledge, Ms Byer also returned to Melourne in February 32015 to pack up he things in Melbourne and put them in storage. At the time, I was unaware that Ms Byer was in Melbourne. Ms Byer did not tell me that she had come to Melbourne. Ms Byer did not make arrangements for me to see X during that visit.

    i)Despite Mr R’s claims to me that Ms Byer intended to find a home in Melbourne, it becamer apparent in late February 2015 that Ms Byer had permanently move into hjer parent’;s house at (omitted).

    j)I have telephoned Ms Byer and her father Mr R on many occasions since Ms Byer moved to (omitted) earlier this year and asked for X to be returned to Melbourne. Ms Byer has refused to return X to Melbourne.

1. The mother does not deny any of the claims made by the respondent in paragraph 17 of his affidavit sworn 14 May 2015, but proceeds to give a detailed account of VCAT proceedings brought by the paternal grandparents to have her vacate the (omitted) property that she had remained residing in since separation in 2013.  Remarkably, the mother claims that she could find no alternative accommodation in Melbourne, although stating in paragraph 12(f) of her affidavit sworn 25 May 2015 that she receives a family tax benefit of $477.00 per week, part time income of $176.00 per week and child support of $258.00 per week (see paragraph 12F).

2. The mother also states that the respondent provided no assistance in finding alternative accommodation in Melbourne.  Given that the parties have been separated for over a year, it is difficult to understand what the mother expected the respondent to do with respect to accommodation in Melbourne for her.  She simply needed to locate a house or unit that met her needs.

3. The history of representations that the mother made to the respondent, as set out above, appear to have been little more than a ruse to give the father some comfort that she was returning to Melbourne and to delay him bringing any proceedings.  It is clear that by January 2015 the mother was not intending to reside in Melbourne, yet when issuing proceedings she did not seek any parenting orders in circumstances where her new living arrangements would preclude the regularly weekly time between the father and the child.

4. It is only at paragraph 16 of the mother’s affidavit sworn 25 May 2015 that she states that she wishes to live permanently with her parents at (omitted). At paragraph 24, the mother casts her case on the basis that as she had been served with a notice to vacate the (omitted) property she

   “…had nowhere else to live with X.  In the circumstances, the sensible course was to live with my parents.”

5. At the interim hearing, Counsel for the mother spent considerable time, in a strident and emotive way, focusing upon the paternal grandparents’ decision to obtain orders to force the mother to vacate the property in (omitted).  At no time did the mother bring proceedings in this Court nor the State Courts, claiming that she had any equitable interest in the property, nor that the respondent had an equitable interest in the property, nor seeking consequential interlocutory or interim orders to restrain the paternal grandparents from removing her from the property.

6. This is largely a side issue in the parenting case.  From time to time, people living in rental accommodation have to move when leases are not renewed.  It does not seem unreasonable that the paternal grandparents, who had allowed the mother to continue to occupy the premises for a year after separation, expected that she would obtain alternative accommodation. I do not accept the suggestion that alternative accommodation could not be obtained in Melbourne.

7. At paragraph 29, the father says:

   Since moving to (omitted), Ms Byer has made it difficult for X to spend time wih me. For example:

   a)Initially Ms Byer was quite deceptive. In January and February 2015, Ms Byer continued to tell me that she and X were returning to Melbourne. Ms Byer made a series of excuses as to why X had not returned to Melbourne in late January 2015.

   b)In about late February 2015, Ms Byer stopped pretendiong that she was going to return X to Melbourne. I femanded that she bring X back to Melbourne, but she refused to do so.

   c)On 21 March 2015, I spoke to Ms Byer over the telephone. I asked Ms Byer if X could spend time with me over Easter in Melbourne. I offered to pay for X’s flights. On 27 March 2015, I also emailed Ms Byer in this regard. Ms Byer told me that the only way they could come dowen to Melbourne for Easter was if I paid for Ms Byer’s flights and Ms Byer’s accommodation in Melbourne. I told Ms Byer that I could not afford to do so and that it was unreasonable for her to expect me to do so.

   d)I flew up to see X on Thursday 30 April, returning Sunday 3 May 2015. Ms Byer told me that X had a birthday party to attend on the Saturday (omitted). I told Ms Byer that I could take X to the birthday party. Ms Byer told me that she did not agree to me doing so and that I would have to return X to Ms Byer before the birthday party on Saturday. I told Ms Byer that I was not flying back until midday on Sunday and so X could spend time with me after the birthday party. Ms Byer said that she would not return X to me after the birthday party. When I arrived, Ms Byer told me that the birthday party had been cancelled and so I could have X through to Sunday.

8. The only denial made by the mother in relation to the above is in relation to the assertion that she has made it difficult for the father to spend time with the child.  There is no denial of the father’s claim that she was initially “quite deceptive” nor that she “continued to tell [the father] that she and X were returning to Melbourne”, nor that she “made a series of excuses as to why X had not returned to Melbourne in late January 2015.” 

9. Despite Counsel’s particularly impassioned plea that the mother had no financial capacity at all, she sets out in her affidavit (paragraph 26) that she is prepared to pay for half of the child’s flights in order for contact to occur.  It is reasonable to conclude that either Counsel’s submissions were misleading, or that the offer to pay half of the flights was one that would not have been able to be honoured.

10. In 2014, the parties met with the management of the (omitted) Childcare Centre to inspect the Centre and enrol the child at the Centre, paying a bond.  The father says that the mother “unilaterally withdrew X from the centre without obtaining [his] agreement”, returning the child to the (omitted) Children's Centre.  In response, the mother simply says that the child “went there only for orientated and continued to attend (omitted) Children's Centre.”  The father sets out that he continued to pay the rent on the (omitted) property whilst the mother lived there with the child and the child’s full-time child care/kindergarten costs until March 2015. 

11. The mother claims that the father told her that he had stopped paying the rent to his parents in June 2014 but makes no denial that he had been paying the full-time child care/kindergarten costs.  Whilst Counsel for the mother claimed there was no evidence that the child had been attending full-time child care/kindergarten, it seems to me that there is a clear and open inference to be drawn from the fact that full-time child care or kindergarten costs were being by the father, as admitted by the mother.

12. In paragraph 73 of her affidavit, the mother reiterates her feelings of being humiliated by being required to vacate the property owned by the paternal grandparents, and her complaint that “neither [the father] or his father assisted me to find alternative accommodation.”

13. This is not a case where there is any suggestion that the mother suffers any impaired capacity, which would lead one to conclude that a former partner should take some responsibility for locating accommodation for her.  Indeed, had he directed her as to her accommodation it seems to me that it would have been open to the mother to argue that his conduct in those circumstances should be characterised as controlling behaviour. 

14. The father’s case was put simply and without hyperbole, that there had been a long-term and stable arrangement in place for the father to have very regular time with the child in circumstances where he was paying significant child support and paying child care fees for the child to attend full-time child care. The mother subsequently made a unilateral decision to relocate to New South Wales with the child, apparently as an emotive response to being required to ultimately vacate the paternal grandparents’ property over a year after separation, in circumstances where, at best she hid the fact that she was relocating and, at worst, she actively misled the father.

15. Importantly, at no time prior to the father bringing a parenting application did the mother seek parenting orders, nor any orders with respect to a claimed interest in the property that was the subject of the VCAT proceedings. Indeed, the mother even came to Melbourne to attend for the section 60I counselling. There is no suggestion of any correspondence being sent by the mother’s solicitor advising the father of her position nor making any requests or demands for assistance.

16. Counsel for the mother did not squarely address the claims that the relocation was unilateral and undertaken in a deceptive fashion, focusing instead upon the fact that the paternal grandparents had obtained orders requiring the mother to vacate their property in (omitted) and later attempting to develop an argument that saw responsibility for the mother’s relocation fall at the father’s feet on the basis that, without any request or warning, he ought to have simply made offers to provide funds or alternative accommodation to the mother.

17. Counsel for the mother pressed a remarkable submission that the father should locate and arrange accommodation for the mother to live in. This submission was pressed despite it being pointed out that such an arrangement would confer upon the father a large degree of control over the mother’s circumstances and that a better arrangement would be for the father to provide to the mother cash moneys towards rental so as to ensure that the mother had the freedom to choose her living arrangements.  The way in which Counsel presented the mother’s case seemed to suggest that there was a general lack of capacity on the part of the mother to the extent that she may require some form of carer, however this is clearly not the situation in this case.

18. The submissions made by Counsel for the mother did not attempt in any way to follow the pathway suggested by the Full Court in Goode & Goode, nor address the relevant provisions of the Family Law Act 1975 (Cth) (‘the Act’).

19. In determining this matter I have regard to the objects and principles set out in part 7 of the Act and identified in section 60B. I note that the source of the power to make parenting orders is contained in section 65D and, importantly, that the best interests of the child are the paramount consideration (see section 60C and section 65AA).

20. The parties in this case have attended counselling in accordance with section 60I.

21. The proposals of the mother are that she remain living in New South Wales and that the father have holiday time and such time as he may be able to arrange to come to New South Wales on weekends.  The father wishes to resume the previous arrangement where he saw the child at least weekly, on one weekend for the whole weekend and on the other for the Sunday. 

22. In this case there are no allegations of violence or abuse, as is confirmed by the Notices of Risk which identify no such claims. 

23. Whilst the submissions proceeded on the basis that there was considerable disagreement with respect to factual matters, it is clear, on a careful review of the affidavit material, that the differences are relatively limited and that they centre upon the extent of the father’s previous involvement with the child.  However, even on the mother’s version of events, the father had substantial amounts of time with the child and substantial involvement in the child’s life.  It also appears that the child spent each week during the day in child care, even though the mother was not working.

24. The only real issue in dispute in this case is whether or not the child should continue to live in Melbourne or that the mother should be permitted to retain the child in New South Wales following her unilateral relocation. 

25. I turn then to consider the factors set out in section 60CC of the Act. I commenced with the additional considerations in section 60CC(3). In this case, the child is not of sufficient years to provide views that are of assistance in this case, nor has either party provided evidence of the child’s views.

26. On the material before me, there does not appear to be any dispute that the child has a positive relationship with each of the parents, although the extent to which the child has been in kindergarten or child care, at a time when the mother has not been working, gives one some cause to consider the nature of the attachment between the mother and the child. 

27. There is evidence that the child has a positive relationship with extended family in New South Wales.

28. In considering the willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent, it is clear that the mother has not demonstrated such a willingness. Her conduct in this case indicates a preparedness to act deceptively with respect to her relocation, significantly reducing and impairing the capacity of the father to participate in the child’s life. Indeed, one has reason to consider whether the mother’s conduct was vindictive, her unilateral relocation quite possibly having been inspired by the paternal grandparent’s refusal to allow her continue to reside in the (omitted) property.

29. The likely effect of the change in the child’s circumstances imposed by the mother is a significant reduction in time with the father in circumstances where the child has had significant interactions with the father in the past and where it is not reasonably open for the father to follow the child to a small country town.  The change in circumstances would, however, be likely to strengthen the child’s bond with the mother’s extended family.

30. There is considerable practical difficulty and expense with the child living with the father.  Whilst the mother makes an offer to pay half of airfares, this is inconsistent with her Counsel’s emphatically stated position that she has no financial capacity, being in receipt of Centrelink benefits. 

31. While the father earns an income well above average weekly earnings and would be able to meet many airfare costs, his income would be insufficient to cover the costs of the airfares required to bring his contact time with the child back to the level of time spend under the previous parenting arrangement.

32. The change in arrangements will be likely to substantially affect the child’s right to maintain personal relationships and direct contact with the father, particularly given the young age of the child. 

33. There is no claim in this case that either parent is unable to provide for the child’s emotional and intellectual needs. 

34. The parties in this case are of an age and maturity where one would expect that they would have no difficulties in day-to-day arrangements for caring for the child, nor in making their own day-to-day living arrangements.  Whilst Counsel for the mother portrayed the mother as being incapable of making arrangements to rent accommodation, this is not borne out by the mother’s affidavit material and appears to have been more in the order of unhelpful hyperbole than reasoned argument.

35. In this case the child is not of Aboriginal or Torres Strait Islander heritage, nor is it said that there is any particular background or heritage that should be taken into account at this stage of the proceedings. 

36. When turning to consider the attitude of the child and the responsibilities of parenthood, the conduct of the mother shows a poor attitude to these issues.  In contrast, it appears that the father has attempted to chart a course of continuing to negotiate, resisting litigation until such time as he became aware of the mother’s true intentions. In contrast, the mother has, on the material presently before the Court, hidden her true intentions in order to effectively establish some status quo for living arrangements in New South Wales.

37. There is no family violence alleged in this case, and no order that I make today is likely to bring the parenting proceedings to an end. 

38. Given that the mother has lived in Melbourne without working for over a year since separation, it does not appear to me that there is a pressing need for her to relocate simply because she now has to find accommodation other than the paternal grandparents’ property, particularly given the significant change that this would make to the ability of the child to continue to maintain a close relationship with the father.  I also note the mother has yet to seek any interim orders with respect to spousal maintenance, nor has she even sought to particularise any claim for spousal maintenance in her Initiating Application or Reply. 

39. Turning to the primary considerations, I note that there is considerable benefit to the child of having a meaningful relationship with both parents and that this has clearly been occurring, even on the mother’s version of the child’s relationship with the father.  The relocation proposed by the mother for a child who is not yet of school age will present considerable difficulties in the child maintaining the same level of relationship with the father. 

40. There does not appear to be a need to protect this child from physical or psychological harm.

41. It is difficult to avoid the conclusion that in this case there should be equal shared parental responsibility.  It is also difficult to conclude that the child should live anywhere but Melbourne, with regular time to take place between the child and father, at least until such time as there is a hearing to determine whether or not the mother should be permitted to relocate.  In this case, importantly, the father has offered to provide considerable financial assistance to the mother to enable her to obtain accommodation in Melbourne, including paying a bond, an ongoing contribution of $400.00 per week (in addition to child support) and $1000.00 initially to enable the mother, if she chooses, to come to Melbourne to obtain accommodation. 

42. The result of these proposals is that the father would be contributing, in addition to around $2700.00 initially (being the $1000.00 in cash and bond), a total of $650.00 per week to the mother’s household by way of rent contribution and child support.  In the circumstances of this case I see no financial impediment to the mother living in Melbourne with the child.  It is practicable for the mother to live in Melbourne.

43. I am persuaded that the child’s best interests in this case require the child to be returned to Melbourne to resume regular contact with the father.  Having regard to the circumstances of the case, if the mother refused or failed to return to Melbourne, I am of the view that it is a case where a change in residence would be warranted on an interim basis. 

44. Whilst the father has sought that the mother return to Melbourne within three weeks, it appears to me that, having regard to the usual times it takes to rent a premises, five weeks would be more realistic and I will therefore make orders accordingly.

45. The hearing of the matter occurred in a busy duty list and following hearing argument I gave the parties notice that I intended to make orders for the mother to return, following which they were able to reach agreed orders with respect to the contact between the father and the child following the mother’s return.   The orders for return remain orders of the Court and the agreement as to the details should not be read as a consent by the mother to the orders requiring return.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date: 12 August 2015