FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Deeks & Hilding [2024] FedCFamC2F 355
File number(s): ADC 4503 of 2023 Judgment of: JUDGE BROWN Date of judgment: 22 March 2024 Catchwords: FAMILY LAW – Parenting – child aged three years – unilateral relocation – mother has moved child from Adelaide to Sydney – child has been in NSW for a period in excess of twelve months – father seeks compulsory return of mother and child to SA – high conflict – allegations of substance abuse and family violence – emergency facing mother at time of relocation – best interests – stability of care arrangements – logistical considerations relating to spend time with arrangements Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: AMS v AIF; AIF v AMS (1999) FLC 92-852
B v B (2006) FamCA 1207
C & S [1998] FamCA 66
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
Fragomeli & Fragomeli (1993) FLC 92-393
Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No 2) [2010] FamCAFC 101
Mazorski v Albright (2007) 37 FamLR 518
Moose & Moose (2008) FLC 93-375
Morgan & Miles [2007] FamCA 1230
U v U (2002) FLC 93,112
Zawaii & Rayne [2016] FamCAFC 90
Division: Division 2 Family Law Number of paragraphs: 207 Date of hearing: 12 March 2024 Place: Adelaide Counsel for the Applicant: Ms Hume Solicitor for the Applicant: Moloney and Partners Counsel for the Respondent: Ms Van Oosterom Solicitor for the Respondent: Orbell Family Lawyers Pty Ltd ORDERS
ADC 4503 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DEEKS
Applicant
AND: MS HILDING
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
22 MARCH 2024
THE COURT ORDERS, UNTIL FURTHER OR OTHER ORDER THAT:
1.The child X born in 2020 (hereinafter referred to as ‘the child’) live with the respondent mother.
2.The child spend time with the applicant father on a monthly basis as follows:
(a)For a minimum of two (2) hours or such longer period as may be directed by the Director of the applicable service or his/her nominee every first, second and third month in Sydney NSW, with such time to be supervised at a Children’s Contract Centre to be nominated by the mother within 7 days of the making of these Orders, or such other supervision service in Sydney NSW as agreed to in writing between the parties;
(b)For a minimum of two (2) hours or such longer period as may be directed by the Director of the applicable service or his/her nominee every fourth month in Adelaide SA, with such time to be supervised at a Children’s Contract Centre to be nominated by the father within 7 days of the making of these Orders or such other supervision service in Adelaide SA as agreed to in writing between the parties; and
(c)At any other times agreed between the parties.
3.To facilitate…
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CaseChat Overview and Summary
The central legal issue before the court was whether the relocation of the child to Sydney was in the child's best interests and if so, what parenting arrangements should be made to ensure the child's welfare while maintaining contact with both parents. The court needed to consider the stability of the care arrangements, the logistical challenges of maintaining a relationship with the father, and the allegations of substance abuse and family violence that formed part of the high-conflict backdrop to the case.
The court determined that the child should remain with the mother in Sydney, but established a supervised visitation schedule to allow for regular contact with the father. The court mandated that the child spend time with the father in Sydney for three months out of every four, with the remaining month in Adelaide. The supervision was to occur at a Children's Contract Centre, with each parent to nominate a centre within seven days of the order. Additionally, the court required the parents to obtain reports from the supervision centres regarding the child's reactions to the visits and mandated weekly video calls between the child and the father. The court also made several orders concerning the exchange of financial documents and the appointment of a Single Expert to address the valuation of disputed assets.
In conclusion, the court issued detailed orders concerning the parenting arrangements and the logistical and financial aspects of the case. The primary orders included the child's residence with the mother, a supervised visitation schedule with the father, and instructions for the exchange of financial documents and expert valuations. The case was adjourned for further consideration, with liberty to apply on short notice in the event of logistical issues.
Orders
Orders of the court
ADC 4503 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR DEEKS
Applicant
AND:
MS HILDING
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
22 MARCH 2024
THE COURT ORDERS, UNTIL FURTHER OR OTHER ORDER THAT:
1. The child X born in 2020 (hereinafter referred to as ‘the child’) live with the respondent mother.
2. The child spend time with the applicant father on a monthly basis as follows:
(a) For a minimum of two (2) hours or such longer period as may be directed by the Director of the applicable service or his/her nominee every first, second and third month in Sydney NSW, with such time to be supervised at a Children’s Contract Centre to be nominated by the mother within 7 days of the making of these Orders, or such other supervision service in Sydney NSW as agreed to in writing between the parties;
(b) For a minimum of two (2) hours or such longer period as may be directed by the Director of the applicable service or his/her nominee every fourth month in Adelaide SA, with such time to be supervised at a Children’s Contract Centre to be nominated by the father within 7 days of the making of these Orders or such other supervision service in Adelaide SA as agreed to in writing between the parties; and
(c) At any other times agreed between the parties.
3. To facilitate order 2 above, each party shall do all things necessary to complete their intake assessment and provide all information and documents as requested by the supervision service within seven (7) days of such request, with the parties to share equally in the costs of the supervision.
4. At the conclusion of the supervised time spending specified in order 2 above, the father is to obtain a report from the Director of the Centre located in Adelaide and the mother is to obtain a report from the Director of the Centre located in Sydney regarding the child’s reactions to the visits.
5. The mother facilitate the child’s video communication with the father each Sunday at 4.00 pm (Sydney time) with the mother to initiate the call to the father’s mobile number or at any other times agreed by the parties in writing.
THE COURT FURTHER ORDERS THAT:
6. Within 7 days and pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the parties are to agree a valuer to be appointed as the Single Expert (“the Single Expert”) to value any asset the value of which is in dispute.
7. Within 14 days of the date of these Orders the parties must send a joint letter of instruction to the Single Expert requesting that they prepare a report (“the report”) as to valuations.
8. Each of the applicant and the respondent shall meet one-half of the Single Expert’s fees to prepare the report. Within 14 days of the date of these Orders, each party must exchange with each other party a copy of each of the following documents (to the extent such documents have not already been provided):
(a) the documents mentioned in Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
(b) statements for all bank or credit union accounts (including loan, mortgage and credit card accounts) in which the party has an interest for the period from 12 months before the date of separation to the date of these Orders;
(c) any documents which:
(i) support the information contained in the party’s Financial Statement;
(ii) estimate the value of any vehicle in the party’s possession;
(iii) confirm the date of receipt and amount of any inheritance, gift, redundancy or compensation payment received by the party from the date of cohabitation to the date of these Orders;
(iv) detail the party’s acquisition or disposal of property for the period from 12 months prior to the date of separation to the date of these Orders;
(v) evidence any increase or reduction in the liabilities of the party for the period from 12 months prior to the date of separation to the date of these Orders;
(vi) confirm the value of any superannuation fund in which the party has an interest at the date of cohabitation, the date of separation and the date of these Orders.
9. Within 21 days of a party receiving a written request for a document from another party to these proceedings, the first-mentioned party must provide a copy of the requested document(s) to the requesting party to the extent they are within the first-mentioned party’s power, possession or control.
10. The parties and any lawyers on the record shall personally attend a Conciliation Conference with a Judicial Registrar on 10 July 2024 at 9.00 am.
11. The parties and any lawyers on the record shall follow any directions from the Registrar convening the conference in relation to attendance in person, by Microsoft Teams or by telephone.
12. Unless they obtain an exemption of such fee in accordance with the Family Law (Fees) Regulations 2012 (Cth), the applicant father must pay the Conciliation Conference fee no less than 14 days prior to the Conference and the respondent mother do reimburse the applicant father with one half of such fee within 7 days of being provided with evidence of payment of same.
13. Not later than 25 June 2024, each party must:
(a) ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) have been exchanged;
(b) ensure that any private expert report that is relevant to the proceedings has been filed;
(c) provide to the Court (by email to […]) and to the other party a single collated bundle of documents comprising:
(i) a Confidential Outline of Case (Dispute Resolution)
(ii) a detailed minute of Orders Sought;
(iii) details of any previous or current family violence orders;
(iv) a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);
(v) particulars of any financial resource;
(vi) a valuation or market appraisal of any real estate or other asset the value of which is in dispute;
(vii) statements for, and where applicable, valuations of any superannuation interest;
(viii) written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.
14. Further consideration of the matter is adjourned to 23 July 2024 at 9.30 am for directions NOTING liberty to apply on short notice is granted to the parties in the event logistical issues arise.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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