COTE & SAXON

[2019] FCCA 1408

FEDERAL CIRCUIT COURT OF AUSTRALIA

COTE & SAXON [2019] FCCA 1408

Catchwords:
FAMILY LAW – Applicant father seeks airport watch list order for two year old child – respondent mother seeks interim order permitting international relocation the next day – best interests of the child – airport watch list order.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR COTE

Respondent: MS SAXON

File Number: DNC 189 of 2019

Judgment of: Judge Young

Hearing date: 7 May 2019

Date of Last Submission: 7 May 2019

Delivered at: Darwin

Delivered on: 7 May 2019

REPRESENTATION

Counsel for the Applicant: Ms Thompson

Solicitors for the Applicant: Ward Keller Lawyers

Counsel for the Respondent: In person

Solicitors for the Respondent: In person

THE COURT ORDERS UNTIL FURTHER ORDER

1. That the child [X] born … 2016 live with the mother.

2. That if the mother departs to New Zealand the child live with the father on the condition that the father continues to reside at the home of the maternal grandmother.

3. That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 the parties, MR COTE born … 1989 and MS SAXON born … 1989 and their servants and agents, be and are HEREBY restrained from removing or attempting to remove or causing or permitting the removal of [X] (male) born … 2016 from the Commonwealth of Australia.

4. That it is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of twelve (12) months.

5. That upon expiration of the period referred to in Order 4 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s names from the Watch List. 

AND IT IS ORDERED:

1. That these proceedings are transferred to the Family Court of Australia at Darwin to be listed on a date to be fixed by that Court.

THE COURT NOTES:

A.That if after the expiration of the period set out in Order 4 above any parent seeks that the child’s name remain on the Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 189 of 2019

MR COTE

Applicant

And

MS SAXON

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter is brought on urgently.  The applicant father has sought an order that the two and a half year old child named [X] be placed on the airport watch list which would prevent him leaving the country.  The parties separated, I’m told, in March last year, a little more than a year ago.  I was told by the counsel for the father, and this is supported by affidavit, that the child has lived with the mother since separation but spent substantial and significant time with the father.  The mother’s affidavit filed in response says that soon after separation she moved in with Mr A, her new partner, including with her two other children, [B], who is 12, and [C], who is nine. 

3. It appears that both parents, as far as I can see, originate from New Zealand and I assume have been working in Darwin, although the mother has told me from the bar table that her mother lives in Darwin. 

4. The mother did confirm from the bar table today that the child spends about two days a week with the father.  She says because the father is living with the maternal grandmother that the child spends time with the father at the maternal grandmother’s house.  However the arrangements show that the child is spending substantial and significant time with the father and living with the mother.

5. The mother’s short affidavit makes various allegations against the father of harassment and the like.  She simply says in her affidavit that she wishes to be permitted to relocate to New Zealand.  It’s not clear from my reading of the affidavit what the particular reason for relocation is, why there is any urgency to relocation, though the mother has told me in substance that she has booked airfares along with Mr A and the two other children to go to New Zealand tomorrow.

6. The real background to the matter and the information the court is given is summary, at best, about the relationship of the children and the adults in their lives.  While the mother certainly does not have to give a reason to relocate or a good reason to relocate, it appears to me obvious that if there is a relocation to New Zealand tomorrow that the child’s relationship with the father, at two and a half, will be significantly affected and very possibly severed unless he moves back to New Zealand.  That, of course, is an option that a court would have to consider and if it was practicable for the father to move to New Zealand then ordinarily a court would permit the resident parent, if I can call her that, to relocate because one parent is not to be held hostage by another in these circumstances. 

7. However, I have no information about any of those matters and the matter has come on in the duty list today with the mother proposing to relocate to New Zealand tomorrow.  She has not sought legal advice at any point.  She has not, despite the obvious opposition of the father, taken any steps to seek legal advice.  She has not said why she cannot delay the departure to New Zealand at this stage or why it is so pressing that there ought to be an interim permission to relocate without any consideration by the court of the circumstances.  In those circumstances, it appears to me to be unrealistic of her to expect me to make an order permitting her to relocate on interim basis now, or tomorrow, and I’m not prepared to do that. 

8. The mother has told me from the bar table that if that is the consequence, she will leave the child here in Darwin and relocate with her partner and her two older children.  That was what was said from the bar table.  It’s not included in any affidavit.  Of course that is an option that she might take.  I don’t know how serious it is.  It could simply be a threat intended to put pressure on the court.  It could be entirely genuine.  I don’t know.  However, in the circumstances where a court cannot, in these circumstances and in the time allowed, make any real assessment of the best interests of the child, it appears to me to be quite improper for a court to simply respond to that threat, genuine or otherwise, by permitting a relocation without any consideration of the best interests of the child, which is really what is being put by the respondent mother. 

9. In the circumstances, I will not make an order permitting her to relocate the residence of the child on an interim basis.  I intend to make orders that the child’s name be placed on the airport watch list.  I propose to make an order transferring the matter to the Family Court and, if the mother wishes, she can renew her application for interim relocation in the Family Court.

10. I was told by the mother from the bar table that the maternal grandmother lives in Darwin and the father lives with the maternal grandmother.  Should the mother depart for New Zealand tomorrow, as she has threatened, and leave the child behind, the child will presumably be cared for by the father and the maternal grandmother.

11. I’m going to make these orders: the child is to live with the mother; however, if the mother departs for New Zealand, the child is to live with the father on condition that the father continue to reside at the home of the maternal grandmother.  I infer from the circumstances that the maternal grandmother is likely to have a close relationship with the child and if the child is cared for in the home of the maternal grandmother and the father the child is likely to be properly cared for. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 24 May 2019