Conlan and Tomlinson

[2019] FamCA 93

FAMILY COURT OF AUSTRALIA

CONLAN & TOMLINSON [2019] FamCA 93

FAMILY LAW – CHILDREN – Interim Parenting Orders – Unilateral change made in face of final parenting orders – Relocation – Proposed further relocation – Importance of stability in these particular circumstances. 

Family Law Act 1975 (Cth)

Goode v Goode [2006] FamCA 1346
Morgan v Miles (2007) FLC 93-343
Rice & Asplund (1979) FLC 90-725
U & U (2002) 211 CLR 238

APPLICANT: Mr Conlan

RESPONDENT: Ms Tomlinson

FILE NUMBER: AYC 59 of 2013

DATE DELIVERED: 27 February 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 21 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Longworth

SOLICITOR FOR THE APPLICANT: Robb & Associates

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. The Mother shall, by 4pm on 3 March 2019, return X (the child) to live within 40 km of the D Town post office;

2. In the event that the Mother does not commence to live within 40 km of the D Town post office at the time of the return of the child in Order 1 above, then the child shall commence to live with the Father;

3. In the event that the Mother does not commence to live within 40 km of the D Town Post Office by 4 pm on 10 March 2019 then, until further Order the child shall live with the Father and the Father is then at liberty to enrol the child at the G Town Public School;

4. In the event that the Mother does commence to live within 40 km of the D Town Post Office by 4 pm on 10 March 2019, then the child shall then live with the Mother and spend time with the Father in accordance with the Orders of Justice Thornton of 31 October 2017;

5. Should the child live with the Mother in accordance with Order 4 above then the Mother is at liberty to enrol the child at a school within that 40 km radius and is then restrained from changing the child’s school unless the agreement of the Father is first secured in writing;

6. Should the Mother fail to enrol the child in accordance with the above Order within 7 days of her return to live within 40 km of the D Town Post Office, then the Father is at liberty to enrol the child at a school of his choosing within that radius;

7. Should the child not live with the Mother in accordance with Order 3 above, then the Mother is at liberty to relist the matter for further orders in relation to the time she will spend with the child, on the filing of an application in a case and supporting affidavit material;

8. The parties are at liberty to make arrangements for the child differing from those set out above provided they are by agreement and evidenced in writing;

9. Should the Mother fail to comply with Order 1 above then the Father is at liberty to relist the matter at short notice for the purpose of obtaining a recovery order;

10. This matter is transferred to the Canberra Registry of the Family Court of Australia;

11. The matter is otherwise listed for further directions at 10am on 22 May 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Conlan & Tomlinson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: AYC 59 of 2013

Mr Conlan

Applicant

And

Ms Tomlinson

Respondent

REASONS FOR JUDGMENT

1. These are proceedings concerning the child of the relationship, X (the child), who is eight years old.  The child is the subject of final orders that were made by Justice Thornton on 31 October 2017 in contested proceedings between the parties. 

2. Her Honour’s orders included provision for equally shared parental responsibility, that the child would live primarily with her Mother, and that the child would spend time with the Father each alternate Thursday through to Monday, and the alternating Wednesday night.  Provision was also made for school holiday and other time.  Included in those findings were her Honour’s conclusions that the child has a good relationship with both of her parents, that the Mother's anxiety impacted upon the child and that a change in the primary carer for the child would be traumatic for the child.  The context of those orders was that the Mother and the child lived in D Town, the Father in G Town a short distance away.  The parties have varied the child's arrangements from those set out by Justice Thornton and the Father has not been exercising the Wednesday night times. 

3. Interlocutory orders were subsequently made by Justice Cronin on 2 November 2018.  That listing involved an allegation that the Mother had threatened to remove the child to the United Kingdom for an extended period, including a proposal that she would enrol the child at a school in the United Kingdom.  The Father made an application to restrain the Mother and the matter came before Justice Cronin in November 2018.  The Mother had at this stage also removed the child from school and started to home school her. They make provision in relation to international travel and also for a psychologist to assist the parties in their communication, in the child's anxiety, and in the return of the child to mainstream school.  The circumstances by which an order needs to be made to facilitate her return to mainstream school will be dealt with later.  His Honour also provided for the proceedings to come before me on 12 February 2019 to determine threshold questions involving the principles contained in Rice v Asplund and also to consider whether the matter should be transferred to the Federal Circuit Court.

4. These latter matters can be dealt with summarily.  The Mother now advises that it is her intention, subject to orders by the Court, to relocate internationally to the United Kingdom, her place of birth.  This constitutes a new and substantial issue and falls within the complexity of cases to be dealt with by the Family Court and it is inappropriate either to transfer the matter to the Federal Circuit Court or to bring the matter to end without full hearing and consideration. 

5. Shortly before the matter was due to come before me on 12 February 2019 the Father filed an Application in a Case seeking the return of the child to live within a 40 km radius of , or for a recovery order to issue to cause the child to live with the Father.  He sought orders related to schooling arrangements for the child and for costs. 

6. What prompted that application was that the Mother had relocated her and the child's place of living, without the agreement of the Father, to the Australian Capital Territory (the ACT).  The Mother has unilaterally enrolled the child in school there.  This move by the Mother is in conflict with the orders made by Justice Thornton in relation to equally shared parental responsibility (as such a move involves 3 to 3½ hours travel should the child continue to spend time with the Father, rendering it significantly more difficult).  It also involves a change to school arrangements for the child.  It also sits inconsistently with the orders made by Justice Cronin that if the parties had not resolved schooling issues for the child by 7 December 2018 then the matter could be relisted before the Senior Registrar for determination of those issues.

7. The Mother now seeks orders allowing the child to remain in the ACT.

8. When the matter initially came before me, the Father's Application in a Case and the orders in response sought by the Mother (in an affidavit filed late by her) were adjourned for approximately one week.  That was done because I indicated to the parties that the material that had been filed was inadequate to determine the child's best interests.  The parties were then allowed seven days to file further material. 

9. On its return the matter was again adjourned, this time for a period of one day.  That was on the basis that the Mother denied having received the Father's material and asserted that she had had difficulties filing her material on the portal.  The Father, as indicated by exhibit F1, had emailed the various documents to the Mother at multiple addresses including both the address that she admitted she currently uses and the address which was set out by her in her Notice of Address for Service.  The Mother claimed that the Notice of Address for Service address was no longer functional as it had been hacked and she had been forced to close it down days before the trial.  She did not explain why, under those circumstances, she had failed to take any steps to make an enquiry of the solicitors for the Father as to whether he had filed material in accordance with the directions that I had given, or to notify them of the difficulties that she was having with that address.

10. In any event, any problem caused by the matters claimed by the Mother was cured by adjourning the matter until the next day.

11. The material provided by the Mother covered a number of subjects.  One related to the issue of international travel and the implementation of the orders made by Justice Cronin.  It is not necessary to resolve those issues at this point.  She also addressed the parties’ attendance upon Mr HH in accordance with Justice Cronin's orders.  Mr HH is a psychologist.  The Mother says that as part of this process she raised on 7 November 2018 her desire to relocate from D Town to Canberra.  The Father was not present at that point and it appears that the Mother emailed him with her proposal to move.  The Father and Mother then both attended upon Mr HH on 20 November 2018.  The Father accepts that he gave some consideration to the move but there is no suggestion by either party that he consented to the move absent the parties coming to an agreed arrangement as to under what circumstances that would happen, in particular in relation to what circumstances would then govern the child.

12. The Mother describes her lease ending on 1 December 2018, as having no other lease, as having no job and alleged that the Father had stalked her, including by banging on her door.  It is unclear when this is supposed to have happened or how.

13. The Mother described that she went with the child to Canberra to spend time with friends for Christmas.  She obtained full-time employment, says that she has leased an apartment and enrolled the child at a school.  She now seeks parental responsibility, that she remain living in Canberra, ultimately that she and the child relocate to the United Kingdom and other orders in relation to international travel and the reimbursement of expenses.

14. At its highest, the Mother advised the Father of her desire to move to Canberra and, after the event, advised him that she had done so.  This was in the face of material the Mother annexed to her own affidavit including correspondence from the Father’s solicitors.  That correspondence, dated 25 January 2019, indicated that there was no agreement on the part of the Father to move to Canberra, and there being no permission in respect of enrolment of the child at school.  The correspondence also referred back to a point at 17 December 2018 where the Father had also indicated that there was no such consent.

15. The Mother’s material now suggests that to change the child's school and primary residence from the Mother would be devastating.

16. This assertion on the part of the Mother must be seen in the context of the arrangements since the final hearing of the matter by Justice Thornton.  For a period the child was enrolled at the K School.  The Mother, without the consent of the Father, removed her from that school and enrolled her at the Scots school.  Again, without the consent of the Father the Mother removed her from that school and commenced to home-school the child.  It was in that context that Justice Cronin made the orders to facilitate the child's return to mainstream schooling.

17. The Mother’s additional material filed in the afternoon of 20 February 2019 consisted of an affidavit from her and from her mother.  That set out that her ultimate application is relocation to the United Kingdom with interim relocation to Canberra.  That is, on her case Canberra is to be a stopgap or temporary measure pending a move to the United Kingdom.  In that affidavit the Mother gave limited detail as to her working arrangements (indicating that she was working full-time) and asserting at the hearing of the matter on the following day that she had now obtained a position in Canberra.  She did not set out the care arrangements for the child.  She asserts that the child is happy and apparently settled at school and has accumulated friends.  She asserts that she has a home that the child is happy in.  The evidence of the maternal grandmother adds little of substance in respect of the interim dispute.

18. The Father filed material, in addition to his initial affidavit, being a further affidavit from him, an affidavit from his manager and an affidavit from Ms JJ who could be described, on the basis of her affidavit as a friend or acquaintance of the Mother. 

19. The Father's material concedes that there were discussions between he and the Mother regarding the move to Canberra, although he says that those discussions commenced on 21 November 2018 and ended without resolution on 2 December 2018. 

20. The Father's affidavit noted that he was informed of the relocation to Canberra on 28 January 2019 and then of the enrolment at KK School on 4 February 2019. 

21. The Father's position is to seek the child's return.  If the child returns and her Mother also returns he does not seek to change who she primarily lives with.  He seeks that the child be enrolled at a public school proximate to the Mother.  If the Mother does not return he then asked that the child live with him in G Town, a small town close to D Town.  He describes that the child has decorated her own room there and there are various activities they undertake in the region.  He describes that he has flexible work arrangements (a matter supported by his manager) and that he proposes to enrol the child at the G Town primary school.  He describes the child having friends nearby where he lives who attend that school and that she is familiar with the campus.  He proposes to use leave to assist the child to transition. 

22. The Father also adduced evidence from Ms JJ.  She has been a work colleague of the Mother’s.  Ms JJ's evidence depicts a number of somewhat bizarre interactions with the Mother.  In advance of the move to the ACT the Mother described to Ms JJ both her marriage to a particular person and that she had four children to that person.  She described that the person was a health professional and had been transferred to Canberra to work and that she would be relocating to Canberra.  She described that she had discovered that the person had cheated on her and that the marriage had come to an end.  She was still moving to Canberra and obtained financial assistance from Ms JJ in the form of a loan of thousands of dollars.  Ms JJ provided other practical assistance to the Mother and attended at the Mother's home in her supporting role.  She says that while attending at the home she spoke to the child, asking the child about her siblings, a matter about which the child, although displaying some confusion responded, describing her siblings.  Ms JJ continued to give the Mother assistance after the Mother moved to Canberra.  One of her children assisted the Mother by driving a hire car back to D Town and Ms JJ put the Mother in touch with people who could give her work.  Ms JJ's daughter assisted the Mother with babysitting (although this may have been paid).  Some difficulty then arose between Ms JJ and the Mother involving in part a request for repayment which ultimately caused Ms JJ to attempt to contact the alleged husband.  The number that she been given was for the Father.  At that point Ms JJ discovered that all that she had been told, as outlined above, was untrue.  Ms JJ also gave evidence that the Mother had indicated to her that she had given up the apartment in Canberra and moved into accommodation at another workplace in Canberra, with the child. 

23. In response the Mother says that she accepts that she owes Ms JJ money but also says that Ms JJ's testimony is grounded in a disagreement that they had about her providing a reference for Ms JJ.  The Mother says that she provided a reference which was less than positive.

24. Understanding that at least some aspects of the interactions with Ms JJ are disputed (the Mother also claimed that Ms JJ is confused and that the personal circumstances described related to a friend of the Mother’s rather than the Mother herself), the circumstances eerily echo findings made by Justice Thornton in her judgment that the Mother had lied to both the Father and her solicitors about the death of her Mother.  That is, prior of the final hearing in the matter the Mother had communicated that her mother had died (this not in fact being the case) and the consequence of this was that the Father was left with the task of breaking the bad news to the child that the maternal grandmother had died.

25. A further consequence of Ms JJ's description, if true, is that it indicates that the child has been involved in the Mother's deceptions, being caused to participate in the story whereby the child was one of four siblings rather than a sole child.

Approach

1. These proceedings fall to be determined on the basis of what is in the child's best interests, as determined by a consideration of the matters set out at s 60CC of the Family Law Act. 

2. If an order is to be made for equal shared parental responsibility then the Court is to follow the reasoning process set out in s 65DAA and described by Boland J in Morgan v Miles[1] as “the careful exercise of a structured discretion to determine the appropriate order to be made”.  That process calls for the sequential consideration of orders for equal time with parents, followed by orders providing for substantial and significant time with a parent prior to a consideration of other options.

   [1] (2007) FLC 93-343.

3. In considering the potential application of the process should there be an order for equally shared parental responsibility, it should be noted that neither party seeks an equally shared time arrangement, nor, at least if the Mother remains in the ACT, a substantial and significant arrangement.  Such an arrangement would be impracticable if the Mother remains in the ACT.  If the Mother moves to the D Town area, the Father does seek substantial and significant time, which is not rendered impracticable under those circumstances.

4. The current determination occurs against the background of the relatively recent final resolution of the child's best interest following contested proceedings before Justice Thornton.  Those best interests meant that Justice Thornton determined that there be a substantial and significant arrangement for the child in spending time with her Father.

5. Although the Mother’s actions are in apparent disregard of final orders, the issue of punishment for breach of such orders is not a consideration in these proceedings.

6. The case of Goode & Goode deals with determinations of interim proceedings as being the consideration of the proper regulation of the position of a child pending final determination.  To that end the less contentious matters such as the agreed facts, care arrangements before separation, the current circumstances and the proposals of the parties are appropriately the matters of focus.  It is noted in Goode & Goode that it may still be necessary to consider contentious matters where they relate to child protection issues.  The Court is to avoid being drawn into the substantive merits of the case.

1. At the same time, Dieter & Dieter points to the need for a Court to consider the presence of corroborative material.  That is, although a matter may be controversial, the Court can still have consideration of those matters that may be more safely relied upon, particularly in the assessment of risk.  In doing so it is necessary to recognise that such use will be taking place in the absence of settled findings being made as to the accuracy of those contentions.

2. There are therefore a number of important considerations which emerge as being the important considerations in this case.  They focus upon the benefits of the child having a meaningful relationship with each parent, the nature of the relationships that the child has with each of her parents and the ability of each to provide for the child, in particular, emotionally. Part of the child’s emotional care is the living arrangements and stability of living arrangements for the child with each parent. Since the making of final orders, the child’s living arrangements have become more and more chaotic in the care of the Mother.

3. Although the Mother has raised issues of family violence she has not done so in a manner that warrants or identifies concrete measures to protect the child from exposure to family violence.  Her allegations that she has been stalked are disputed and are set out in a fashion that does not identify a necessary course of action to protect the child from the risk of such exposure (although, if true, the move to the ACT puts distance between the parties).

4. Justice Thornton noted that the child has good relationships with each parent.  She also found that the child’s relationship with her Mother causes an increase in anxiety for the child.  At the time of the final hearing a change of residence was thought to be traumatic.  Since that time the child has been spending, until recently at least, regular time with her Father.  It is not apparent that any significant difficulties have emerged from that regular time with the Father.  While in the primary care of the Mother, contrary to Justice Thornton's orders, the child has changed schools once and then been removed from school completely to be home-schooled.  She has then changed home, changed city, and enrolled in a new school under the shadow of a proposal that shortly she would relocate to a new country.

5. At present the Court is confronted with three positions.  Firstly, the Father says that if the child returns to D Town she should be in the primary care of the Mother.  Secondly, if the Mother does not return then the child should live with the Father in G Town and attend school in G Town.  The details of the third position, that the Mother lives in Canberra with the child, shifted through the proceedings, from suggesting that the Father could spend time with the child each third weekend to saying that it could happen each alternate weekend, although not for the time periods of the current orders.  In support of this, despite describing previous transport limitations occasioned by the lack of a motor vehicle, the Mother also asserted that she would be able to take the child to the Father's home and collect her on each occasion, although her preference would be for handovers to occur in LL Town, which is approximately the halfway point between Canberra and D Town. The late breaking proposal for alternate weekend time and transport does not give great confidence that such would be complied with.

6. On any scenario, the child should be able to maintain a meaningful relationship with each parent.

7. While the Mother initially clearly stated the position that she would remain in Canberra should the child be required to return to the D Town region (this being reflective of her application to the Court), at the end of the proceedings the Mother said she was not going to give the child up and would go back if she needed to.  There must be some doubt about what the Mother will do if the child is returned to the D Town region.   If the child does return, in the care of her Mother, it is unclear what the care arrangements would be, including what school the child might be enrolled in.  If she returns into the care of her Father those arrangements are identified.

8. In many respects the Mother is uncontested as primary carer, and may not continue that role if the child returns to D Town.  It is a guaranteed position in Canberra.  A move back to D Town is guaranteed to cause change in home and school, even from what she previously had in D Town. 

9. The child is in the midst of and facing potential further disruption. 

10. In a number of respects these circumstances call for the child to remain in Canberra in the interim.  However, the stronger consideration relates to the chaos, occurring over an extended period, in the child’s life from decisions and unilateral actions by the Mother.  The rapid changes for the child are now in the context of proposed further change by a move to the UK.  The contested circumstances of the move and representations by the Mother (as described by Ms JJ) indicate a potential although unproven further risk of instability in the child’s living arrangements.  The unilateral decision making with its consequent major disruptions call into question the Mother’s capacity to care emotionally for the child.

11. It is important that the child be given stability in the context of these proceedings, even at the cost of immediate disruption for the child and potential change of primary carer.  It is important that the child have close and regular involvement from her Father in the face of the other chaos on her life, particularly within the exposure to anxiety as identified by Justice Thornton.

12. Even if this results in a change in primary carer for the child, ensuring her regular time and ready access to the Father, and stability of that relationship, along with securing stable arrangements for the child pending final hearing outweighs the other considerations going to the child’s best interests.

13. In concluding in this manner, I do not ignore the assertions made by the Mother as to the child being settled in Canberra and in school, and as to the Mother’s assertion as to the work that she has there.  They are contentious claims and, particularly when seen in the context of the contentious evidence of Ms JJ, I am not prepared to assign weight to them.

14. Similarly, I am not prepared to place weight on the Mother’s claims as to her circumstances in D Town.

15. While the Mother claimed that, if she chose to return to D Town, the Father’s proposed 40 km restriction is unduly restrictive, she has not provided evidence to suggest that it is practically so, other than the references to stalking. That allegation is not resolved by a different but practical distance from D Town.

16. Orders will provide for the child’s prompt return to D Town to the Father’s primary care unless the Mother also returns in a timely manner.  If she does not, the child will remain with the Father at the school in G Town.  If she does, then, as per the Father’s application, she may select the school for the child.  She will not be permitted to change the school without agreement from the Father.  If the Mother promptly moves to D Town, the child will live with her but have ready access to her Father.

17. If the Mother does not return with the child, further consideration will need to be given for arrangements for the child to spend time with her Mother.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 27 February 2019

Associate: 

Date:  27 February 2019