CAMPBELL & AITKEN

[2015] FCCA 3321

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAMPBELL & AITKEN [2015] FCCA 3321

Catchwords:
FAMILY LAW – Children – parenting orders – relocation – recovery order – best interests of the child – where mother unilaterally relocated the residence of the child whilst parenting orders in force – application for recovery order refused – one child aged 10 years – parental responsibility.

PRACTICE AND PROCEDURE – Venue – change of venue – application to transfer proceeding to Parramatta Registry.

Legislation:

Family Law Act 1975 (Cth), ss.11C, 11F, 60CA, 60CC, 61DA, 67Q, 67V, 68L

Federal Circuit Court Rules 2001, r.8.01

Cases cited:
Adamson & Adamson [2013] FCCA 1228

Applicant: MR CAMPBELL

Respondent: MS AITKEN

File Number: SYC 4546 of 2007

Judgment of: Judge Scarlett

Hearing date: 9 December 2015

Date of Last Submission: 9 December 2015

Delivered at: Sydney

Delivered on: 11 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Packer

Solicitors for the Applicant: Yardy Legal

Respondent: In person

ORDERS

UNTIL FURTHER ORDER

1. The Applicant Father is to spend time with the child X born (omitted) 2005 from Thursday 17 December 2015 to Saturday 2 January 2016.

2. For the purposes of the above Order the Respondent Mother is to deliver the child X to the home of the Applicant’s mother Ms Campbell at the commencement of the father’s time with the child and collect the child X from the home of the Applicant’s mother at (omitted) at the conclusion of the Father’s time with the child.

3. The Mother is restrained from removing the residence of the child X born (omitted) 2005 from outside of the Sydney metropolitan area.

4. The Mother must return the child X to reside at an address within the Sydney metropolitan area no later than Saturday 23 January 2016.

5. The Mother and the Father must do all such things and sign all such documents as may be necessary to re-enrol the child X at (omitted) Public School prior to the commencement of the first school term in 2016.

6. As provided by section 11F of the Family Law Act 1975 the Applicant and the Respondent together with the child X are to attend a Child Inclusive Child Dispute Conference at a time and date specified by the Director of Child Dispute Services at the Sydney Registry of the Court and in accordance with the provisions of section 11C of the Family Law Act 1975 the Conference is to be reportable.

7. The interests of the child X born (omitted) 2005 are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and for this purpose Legal Aid NSW is requested to arrange this representation.

8. Within ten (10) days of the date of this Order the parties must send to Legal Aid NSW at 323 Castlereagh Street Sydney NSW 2000 copies of all Applications, Responses, affidavits and other relevant documents for the use of the Independent Children’s Lawyer when appointed.

9. The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge.

10. The Application for a Recovery Order under section 67Q of the Family Law Act 1975 is refused.

11. The Applicant and the Respondent are to have equal shared parental responsibility for the child X.

12. The Application to transfer the proceeding to the Parramatta Registry of the Court is refused.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4546 of 2007

MR CAMPBELL

Applicant

And

MS AITKEN

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Father of a boy called X for orders arising from the Mother’s unilateral relocation with the child from (omitted), a suburb of Sydney, to the New South Wales country town of (omitted).

2. It is the Father’s case that the Mother informed him by an email dated 12^th November 2015 that she had been successful in obtaining a transfer in her employment to (omitted) and she and the child were in the process of moving there. He deposes that this was the first time he had been made aware of the Mother’s plans to relocate from Sydney and he does not consent.

3. The Mother deposes in her affidavit of 8^th December 2015 that she had informed the Father earlier in the year that she was “actively looking at changing roles and locations within the (employer omitted)”.[1] She further deposed that she told the Father in person on 8^th November, four days before the date of the email.

   [1] Affidavit of Ms Aitken 8.12.2015 at paragraph [24]

Background

1. The parties were married on (omitted) 2004 and separated on 13^th October 2006. They were divorced by Order of this Court 18 December 2007.

2. There is one child of the marriage, X, who was born on (omitted) 2005. He lives with the Mother.

3. On 8^th August 2007 the parties entered into Consent Orders in the Family Court whereby the child was to live with the Mother and spend time with the Father:

   a)on alternate weekends during the school term;

   b)on special days including Father’s Day, the Father’s birthday, the child’s birthday and Christmas Day; and

   c)at such other times as the parties agreed in writing.

4. The parties entered into a Minute of Consent varying the arrangements for weekend time and creating some form of a child support agreement. The amendments do not appear to have been filed at a court and appear to remain a private agreement between the parties.

Orders sought

1. The Father seeks these interim orders:

   a)that the child should live with him;

   b)that the Mother return the child to him forthwith;

   c)that a Recovery Order should issue under the provisions of section 67Q of the Family Law Act 1975 (Cth); and

   d)that the Mother be prohibited from again removing or taking possession of the child.

2. The Mother, in her Response filed on 8^th December 2015, seeks the following interim orders:

   a)The proceedings should be transferred to the Parramatta Registry of the Court;

   b)That she have sole parental responsibility for the child;

   c)That the child should reside with her;

   d)That the parties participate in mediation;

   e)That the parties should attend a Child Inclusive Child Dispute Conference;

   f)That the Father give the child’s passport to the Mother within 7 days; and

   g)That the child should spend time with the Father as agreed by the parties in writing.

Submissions

1. Mr Packer of Counsel, who appeared for the Father, submitted that this is a case where the child has been living with the Mother and spending time with the Father. The Mother’s unilateral actions in moving to (omitted) with the child have cut across the parenting orders to which the parties consented. The child has been taken out of school, namely (omitted) Public School, and placed in a new school part way through the school term.

2. Mr Packer further submitted that his instructing solicitor, Mr Yardy, had made inquiries from the Director of Child Dispute Services at this Registry and ascertained that the first available date for a Child Inclusive Child Dispute Conference would be in March next year. He also submitted that this was a proper case for the appointment of an Independent Children’s Lawyer.

3. Mr Packer also raised a concern by his client that the Mother’s actions might place in jeopardy the parties’ existing agreement that the child should be delivered to the home of the paternal grandmother on Thursday 17^th December for the purpose of the Father and grandmother spending time with the child until 2^nd January next year.

4. The Mother said that she still intended to honour that commitment but feared that the Father might not return the child to her as arranged at the conclusion of the time.

5. She seeks that the proceedings be moved to the Court’s Parramatta Registry as it would be easier for her to travel to Parramatta from (omitted) rather than to Sydney. She has made arrangements to obtain legal advice but had not seen a solicitor.

6. It is the Mother’s case that the Father has been well aware of her desire to move from the Sydney area, more particularly to (omitted), and had informed him that she had applied for a transfer in her employment as a (occupation omitted) some months ago.

Conclusions

1. I am not persuaded that this is an appropriate case for the issue of a Recovery Order under the provisions of s.67Q of the Family Law Act 1975. I expressed a view in an earlier case of Adamson & Adamson[2] that a Recovery Order was, in the words of Watson SJ of the Family Court, an order for the Police to “go out and arrest the child”.[3]

   [2] [2013] FCCA 1228

   [3] Supra at [4]

2. A Recovery Order is a draconian procedure which should be exercised sparingly. Section 67V of the Family Law Act 1975 provides that:

   In deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

3. In the circumstances of this case, I am not satisfied that it would be in this child’s best interests to issue a Recovery Order. It could well have a traumatic effect on this 10 year old boy for the police to arrive and remove him from the care of his mother, in whose care he has been living virtually all of his life, and then place him in the full-time care of the Father. Such an event could well have a negative effect on the child’s relationship with his father. I do not believe that a Recovery Order is necessary.

4. This is not to say that the Mother’s unilateral action in relocating the child’s residence out of the Sydney metropolitan area to a country town is a matter that would meet with the Court’s approval. It will not do for the Mother to say that the Father had known about this proposal for a while. There is no evidence that he has ever indicated any consent to the plan. The distance from Sydney will, in my view, have an effect on the parenting orders currently in force.

5. I propose to make an order requiring the mother to relocate the child’s residence back to the Sydney area until this matter can be decided by the Court in the appropriate way, rather than by one party taking matters into their own hands.

6. I note the Mother’s intention to abide by the previous agreement that the child would spend time in the Sydney area from 17^th December 2015 to 2^nd January 2016. I will make an order to that effect. The Mother’s expressed fear that the Father will not return the child to her care on 2^nd January can be laid to rest, because the order will provide that the Mother will collect the child at the conclusion of the time on 2^nd January. If the Father were to contemplate retaining the child after that date, contrary to the orders of the Court, he should be left in no doubt of the folly of such an action.  

7. This is, in my view, a suitable matter for the appointment of an Independent Children’s Lawyer, just as it is a suitable matter for the parties to attend a Child Inclusive Conference with a Family Consultant. The Mother has told the Court that the child has definite views in favour of his move to the country which should be put to the Court.

8. I do not propose to transfer the proceedings to the Court’s Parramatta Registry. I have considered the matters set out in Rule 8.01, relating to change of venue. The parties may not be aware of the critical shortage of Judges being suffered by this Court, due to long-standing vacancies of up to 11 months, not being filled by the Government. The Parramatta Registry is already short-handed, due to Judges going on long service leave prior to retirement. There is a strong likelihood that one or more Judges from Parramatta will be moved into the Sydney Registry to help deal with the Court’s heavy workload.

9. The application to transfer the proceedings to Parramatta will be refused.

10. This is not the time to consider the question of the child’s passport. That can be left to a later date.

11. It is premature to consider the question of sole parental responsibility. Subsection 61DA(3) of the Family Law Act 1975 provides that:

    When the court is making an interim order, the presumption[4] applies the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

    [4] i.e. the presumption in s.61DA(1) that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child

12. In my view, the question of parental responsibility should be left until after the parties have attended a Child Dispute Conference (child inclusive) and an Independent Children’s Lawyer is able to assist the parties and the Court.

13. In the meantime, the Mother will need to return the child’s residence back to the Sydney metropolitan area by 23^rd January 2016 in time for him to return to his former school at (omitted) Public School at the start of the first school term in 2016.

14. As there are no final hearing dates available in my docket, the proceedings will be adjourned to February 2016 so that the Case Management Judge can allocate the matter to a Judge who will be able to hear the proceedings in the future.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  11 December 2015