CARROLL & CARROLL

[2018] FCCA 2494

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARROLL & CARROLL [2018] FCCA 2494

Catchwords:
FAMILY LAW – Parenting – interim relocation – mother’s health – spend time with father.

Legislation:

Family Law Act 1975, ss.60B & 60C

Cases cited:

Morgan & Miles [2007] FamCA 1230

Banks v Banks [2015] FAMCAFC 36

Mallahan v Mallahan [2010] FAMCA 631

Applicant: MS CARROLL

Respondent: MR CARROLL

File Number: ADC 1060 of 2018

Judgment of: Judge Cole

Hearing date: 22 August 2018

Date of Last Submission: 22 August 2018

Delivered at: Adelaide

Delivered on: 6 September 2018

REPRESENTATION

Counsel for the Applicant: Ms Dickson

Solicitors for the Applicant: SE Lawyers

Respondent: The Respondent appearing in person

ORDERS

1. That the children [X] born on 2013 and [Y] born on 2016 live with the mother.

2. That the mother be at liberty to relocate the principal place of residence of the said children from South Australia to Town 1, New South Wales.

3. That the father spend time with the said children as follows:

   (a)In Adelaide on one (1) weekend during the school term from 5:00pm Thursday to 5:00pm Tuesday on such dates as agreed by the parties in writing;

   (b)In Adelaide for a period of one (1) week during each school holiday period on such times and dates as are agreed between the parties for the October school holiday period, and thereafter for the second week of the school term holidays commencing 5:00pm on the middle Friday of the term holidays until 4:00pm on the last Saturday of the term holidays;

   (c)By telephone every second night between the hours of 5:00pm and 5:30pm (AEST time) with the father to telephone the children;

   (d)In Town 1 on such occasions as agreed between the parties in writing; and

   (e)The parties share equally in the said children’s airfare costs associated with the father spending time with the said children in Adelaide or Town 1 upon noting the mother will be accompanying the said children on all flights for the purpose of facilitating the father’s time and will be responsible for her airfare.

4. That pursuant to s.62G(2) of the Family Law Act 1975, the parties and the children [X] born on 2013 and [Y] born on 2016 attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report (NOTING the mother and children will be required to attend in Adelaide for the purposes of the report), with a request that such report be released by 30 November 2018.

5. That the Family Report to deal with the following matters:

   (a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

6. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.

7. The parties do all things necessary to facilitate the completion of the Family Report, including making themselves available for appointments and executing any authorities for the release of information to the report writer.

8. The report writer be at liberty to liaise with any person in relation to the welfare of the children.

9. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) in the proceedings.

10. Unless a party objects, in writing, within fourteen (14) days of the release of 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 children 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.

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

THE COURT NOTES THAT:

(a)At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

(b)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one (1) year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

1. The parties be restrained from providing any documents (other than those filed with this Court) to the report writer without providing a copy to the other party, such copy to be provided no less than seven (7) days prior to the appointment with the report writer (NOTING the report writer’s discretion to accept or reject the document).

2. The proceedings be otherwise adjourned for directions to 10 December 2018 at 9:30am for directions.

3. The proceedings be listed for trial on 13, 14 & 15 March 2019 at 10:00am (NOTING three (3) days allowed).

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1060 of 2018

MS CARROLL

Applicant

And

MR CARROLL

Respondent

REASONS FOR JUDGMENT

1. This is the mother’s application to relocate with the two children of the marriage to live in Town 1, New South Wales and seeks to proceed on an interim basis, the mother’s evidence being that she will be without accommodation as from 15 September 2018.

2. The application is opposed by the father.

3. Proceedings were commenced by the mother in respect of financial matters on 20 March 2018. The father filed responding documents on 15 May 2018.

4. The mother filed an Amended Application on 25 May 2018, including children’s issues and an application that she be at liberty to relocate to Town 1.

5. The matter came before me on 29 May 2018. The mother sought to argue the matter that day. That application was declined and the matter was listed for argument on 22 August 2018.

6. Orders were made allowing the father 28 days to file an affidavit in response. No affidavit was filed.

7. The matter came before me on 22 August 2018. The father conceded he had done himself no favours in failing to file anything with the Court. He was advised that in view of the three months that had elapsed since the matter was set for argument, and the mother’s evidence that she was without accommodation as of 15 September 2018, I considered appropriate that the matter proceed.

8. A submission was made that the matter should proceed on an undefended basis by the way of Counsel for the mother however submissions from the father were received.

9. The mother seeks orders that enable her to relocate to Town 1 with the children on the basis that the children will spend half the school term holidays with the father and one weekend of each school term.

10. The father seeks orders that will enable him to continue to spend time with the children each alternate weekend.

11. There is no dispute that the parties commenced cohabiting in 2009.  They married on 2011 and separated on 6 March 2017.

12. There are two children namely [X] born on 2013 who is aged five this year, and [Y] born on 2016 who is aged two this year.

13. Post separation the mother was employed as a (occupation omitted) however lost her job in or about March of this year. She has since completed a number of job applications without success. She is currently engaged in home duties.

14. It is important to note that the mother has ulcerative colitis. She states she has been hospitalised on more than ten occasions over the last four years. It is noted that her evidence is that she has been hospitalised on two occasions during the period of the adjournment, being once in Town 1 and once in Adelaide. Her evidence contained at [30] of her affidavit filed on 25 May 2018 with further evidence being supplied in her affidavits filed in August 2018.

15. The father is employed on a full time basis as a (occupation omitted) at (employer omitted).

16. There is no dispute that post separation the children remained in the care of the mother, with the father spending alternate weekends with them.

17. It is noted that this matter is brought in the context of proceedings for the division of the parties’ property. The former matrimonial home has now been sold and the proceeds of sale of some $65,549.00 are currently held in a trust account. There is no agreement in respect of the division of those proceeds.

18. I have had regard to the provisions of Part VII of the Family Law Act 1975 (“the Act”). I have noted that any order I make must have the best interests of the children as the paramount consideration. In considering what is in the children’s best interest I have had regard to the provisions of s.60CC of the Act.

19. I have also noted the provisions of s.60B of the Act which sets out the objects of Part VII and the principles which underlie those objects. In particular I note s.60B(2) of the Act provides that:

    (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

    (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d)parents should agree about the future parenting of their children; and

    (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

20. I have had regard to authorities such as Morgan & Miles [2007] FamCA 1230 where Boland J noted:

    It appears to me that the very difficult issues in cases involving a relocation, … 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 type of cases in which the child’s present stability may be extremely relevant on an interim basis.[1]

    [1] Morgan & Miles [2007] FamCA 1230, 88.

21. Judge Boland further noted in her Reasons that the Court must carefully weigh and balance the s.60CC of the Act factors in respect of the competing proposals but by the parties.

22. I also note authorities such as Banks v Banks [2015] FAMCAFC 36 wherein the Court said:

    … By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial…[2]

    [2] Banks v Banks [2015] FAMCAFC 36, 48.

23. Turning to the considerations set out in s.60CC of the Act, the principles underline the object of the Act set out in s.60B of the Act are also noted.

24. Prior to considering the matters set in s.60CC of the Act I would also note the authorities are clear that a relocation case is not a specified sub-category of parenting cases and no principle specific to such cases apply. Such cases are simply cases in which parenting orders are sought in that particular factual circumstances (see Mallahan v Mallahan [2010] FAMCA 631 at [27]).

Meaningful relationship

1. Neither party submits that the children will not benefit from having a meaningful relationship with the other party. It is the terms and conditions upon which that relationship should be conducted which are in dispute.

2. It must also be acknowledged that the mother’s proposal places a significant barrier of distance between the children and their father. It is an open question as to whether or not a meaningful relationship can be maintained in these circumstances.

Risks to the children of physical or psychological abuse

1. The risk of the children of physical or psychological abuse was not a matter heavily pressed in the course of the submissions.

2. The mother does make allegations which are summarised in her Notice of Risk and these have yet to be answered by the father. The matter therefore remains an open question.

3. The wishes of the children was not a matter pressed in any significant way which is appropriate considering the ages of the children of five and two this year.

Nature of relationship

1. The nature of the relationship of the children with each of the child’s parents and any other persons was canvassed albeit in a limited way. It is noted that there is no dispute the mother has been the primary carer for the children. It is also noted that the mother’s evidence is that a significant number of her support persons reside in the Town 1 area.

2. The mother’s evidence is that she has one significant support person in Adelaide. Most importantly the mother’s evidence is that she has the support of her mother in Town 1 and she will be able to reside with her. It does not appear to be controversial that the maternal grandmother has a good relationship with the children.

3. There is some criticism in the mother’s documents about the extent to which the father has taken to spend time with the children or communicate with them. The father has not answered this criticism however for the purposes of this application I do not consider this issue has particular weight. This is particularly so where there appears to be little or no controversy about the father spending alternate weekends with the children.

4. I also note in the course of submissions the father indicated that if the mother was unwell he would be prepared to have the children. That was not an option the mother was prepared to canvas during the course of submissions and considering the father was engaged in full time employment it was not clear as to how that would work with the care of a five and a two year old.

5. There is some criticism about the extent to which each of the parents has failed to fulfil the obligations to maintain the children. Again in the context of this issue before me I do not consider this issue has particular weight.

Changes

1. The likely effect of any changes in the children’s circumstances including the effect of separation of the children from either of the parents is a significant issue. The mother seeks to move the children to Town 1. This in itself means that any attempt to see the children that involved air travel would mean additional travel to a town located outside a capital city.

2. The children’s ability at this young age to have frequent and regular time with their father, would become restricted as a consequence of the mother’s move.

3. Attempts to maintain a meaningful relationship by telephone communication would be problematic particularly when the ages of the children are brought to account. Their ability to engage in any long or meaningful conversation with the father would be limited.

4. At the same time the mother’s evidence is that she would have a significant amount of family support available to her that is not available to her in Adelaide and this cannot be ignored particularly when the mother’s health is brought to account.

Practical Difficulty

1. The practical difficulty and expense of the children spending time with and communication with a parent is significant. The parties do not have a lot of funds. There is no dispute that the cost of the parties travelling between Town 1 and Adelaide with the children will be significant. The proposals put forward by the mother do not canvas any other options and raise significant concerns.

Capacity

1. Against this background however I must consider the capacity of each of the children’s parents to provide for the needs of the child including emotional and intellectual needs.

2. The father is engaged in full time employment. This is not a criticism of him it simply means he is occupied with gainful employment. The mother is currently engaged in home duties. As previously stated the mother has been the primary carer for the children. The children are young and need support.

3. There are however significant concerns in respect of the mother’s health. The mother was admitted to hospital and obtained a two hour release from hospital for the purposes of attending at the argument of this matter on 22 August 2018.

4. The mother’s evidence in respect of her condition of ulcerative colitis which does not appear to be denied is that she has been hospitalised on more than ten occasions over the last four year period. The mother says the symptoms are brought on by stress. With the ongoing passage of these proceedings and the issues of parenting under separate roofs, I have no doubt the stress the mother perceives she is under will continue. It is an open question as to whether it will be more stressful in Adelaide without the family support in Town 1 where she must make every effort to maintain the children’s relationship with the father an facilitate time in accordance with the orders sought by her.

5. The report of Dr J notes that there is no guarantee that the mother will not suffer repeated bouts of illness. I note Dr J’s comment:

   When she becomes unwell, this occurs rather rapidly without the ability to put a lot of planning around it. The disease should not reduce her life expectancy, however it is likely to impair her ability to function fully from time to time and this is likely to be unpredictable.

6. In any event it would appear that she will require support and in view of the difficult relationship between the parties that support is not as readily available to her in Adelaide as it is in Town 1.

Age of children

1. The ages of the children is a significant factor. They are quite young and the move proposed by the mother will likely have a significant effect on their relationship with the father.

Conclusion

1. This application for liberty to relocate to Town 1 is finely balanced. The age of the children is a significant factor as is the distance the mother proposes to move. At the same time, the evidence of the mother is that she is unable to obtain any accommodation in Adelaide. She is unable to obtain employment and her health is problematic as is evidenced by amongst other things in the hospital admissions she has undergone. In view of those issues and in particular her health, she submits that she is the primary carer of the children and needs the support of those people who reside in Town 1.

2. The alternatives on the current evidence available to me have a number of unknown factors that may well be properly explored should the matter proceed to trial. At present, however, I am faced with the primary carer who does not have good health and who requires the support of family and friends and requires accommodation.

3. I must therefore on the evidence accept the mother’s application for liberty to relocate.

4. I have noted the authorities however each case must turn on its own facts and in this matter the application has been made out. The mother’s proposals for the children to spend time with the father are based around the children attending school. I have difficulty accepting that the children’s time mid-term with the father should be restricted to a weekend taking into account their age and  the ability to make up for any absence from their school or day care centre. This is particularly in view of the difficulties the parties will no doubt encounter in having the children spend time in Adelaide and I would therefore extend that time.

1. The mother’s proposals for time are explained in slightly more detail under the heading orders sought in her affidavit of 25 May 2018. I would therefore vary the orders sought by the mother to allow for slightly more than one week during the school holidays.

2. The proposals in respect of telephone time are vague and I would make Orders setting out a time for the father to contact the children.

3. I do not accept, and I note there is some uncertainty in the mother’s proposal, that the father should pay her airfare to accompany the children to Adelaide. The mother’s evidence is that she will be residing with the maternal grandmother for a nominal rent and in view of her move to Town 1, I consider it appropriate that she pay the cost of her airfare. I accept that pending further Order the father share equally in the cost of the children flying to Adelaide.

4. The mother makes a number of allegations that the father engaged in family violence. This is not admitted by the father. I do not consider it appropriate to apply the presumption of equally shared parental responsibility at this stage. Financial issues as well as the mother’s move to Town 1 should remain permanent have yet to be decided. The Court is currently experiencing significant delay in respect of trial listings however I am inclined to list this for the earliest available date. There will need to be a Family Report to be prepared in respect of this matter and I will order that one be undertaken and published by 30 November 2018.

5. I therefore make the orders as set out at the commencement of these Reasons.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Cole

Date:  6 September 2018