Demis and Niles

[2018] FCCA 3674

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEMIS & NILES [2018] FCCA 3674

Catchwords:
FAMILY LAW – Interim relocation – final consent orders made recently.

Applicant: MS DEMIS

Respondent: MR NILES

File Number: DGC 3716 of 2018

Judgment of: Judge Harland

Hearing date: 14 November 2018

Date of Last Submission: 14 November 2018

Delivered at: Melbourne

Delivered on: 14 November 2018

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Hoult

Solicitors for the Respondent: Verhoeven and Curtain

ORDERS

1. The matter remain listed in the Duty List before His Honour Judge Burchardt on 31 January 2019 at 9:45am.

2. In the event the mother remains in Victoria:

   (a)the child [X] born 2006, [X] live with the mother; and

   (b)[X] spend time with the father in accordance with the Final Orders made on 28 May 2018 (in the file number MLC96/2016).

3. In the event the mother elects to return to Town A without [X]:

   (a)[X] live with the father, provided that the father take leave from his work and is available to care for her full time;

   (b)[X] spend time with the mother on alternate weekends during school terms either in [X] or in Victoria;

   (c)[X] spend time with her parents for the Christmas school holidays in accordance with the Final Orders made on 28 May 2018 and the remaining orders otherwise remain in force.

4. Pursuant to order 3 herein, in the event the mother elects to return to Town A she give the father seven (7) days’ notice.

5. Pursuant to s.68L(2) of the Family Law Act1975, [X] born 2006 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such independent representation and:

   (a)forthwith upon appointment by Victoria Legal Aid or otherwise, the independent children’s lawyer file a Notice of Address for Service;

   (b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent himself or herself) provide to the independent  children’s lawyer copies of all relevant documents relied upon;

   (c)the independent children’s lawyer fulfil the requirements set out in ‘Guidelines for the Independent Children’s Lawyer’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.; and

   (d)the independent children’s lawyer prepare a minute of the orders he or she will recommend be made as final orders.

THE COURT REQUESTS THAT:

1. The Independent Children’s Lawyer meet with [X] prior to the next occasion.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 3716 of 2018

MS DEMIS

Applicant

And

MR NILES

Respondent

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 is an application brought by the mother that has been given an urgent listing. She seeks permission to relocate with the child, [X] who is aged 12, to Town A in New South Wales on both an interim and final basis.  The application is opposed by the father, and it is necessary to refer to the background of this matter.

3. The father brought an application for parenting orders in April 2018.  The parties were in a relationship from 2005 to 2010.  The mother has an older daughter aged 16 from a previous relationship.  The father says that from separation until January 2017, the parties lived about ten minutes apart and he saw [X] regularly.  He says that after the mother moved from Town B to Town C, his time was more ad hoc and reduced.

4. He says they entered into a parenting plan in June 2017, but that that arrangement broke down in November 2017.  For the most part, the orders that he sought in his initiating application and the final consent orders that were made in May 2018 reflect that parenting plan.  Consent orders were made on 28 May 2018 by Judge Small on the first return date in the Morwell circuit.  On that occasion the mother had the assistance of a duty lawyer, and the father was represented by counsel. Those orders provided for the parties to have equal shared parental responsibility, for [X] to live with mother, for [X] to spend time with the father on his rostered days off on alternate weekends, and if rostered off for half of the school holidays, as well as providing for half Christmas holidays time on Christmas Eve to Boxing Day and other occasions. It was noted that a condition of the father’s time was that he would not be working interstate, and the orders also noted that the mother and [X] were going to be spending a holiday in Region 1 from 15 June to 18 July 2018.

5. The father works as a [occupation omitted] on a rotating four‑day‑on/four‑day‑off shift and interstate.  The mother works as a [occupation omitted].  The mother disputes the father’s case with respect to the frequency and regularity of time spent between him and [X].

6. He filed a contravention on 13 July 2018, which was returnable on 1 October 2018, and filed an initiating application on 24 July 2018, which was returnable on 22 August 2018 before me, where he sought a recovery order and that [X] live with him. 

7. On 22 August 2018 the mother appeared via telephone with her solicitor, and she filed material in response.  She disputed that she was in breach of the orders, and raised an issue of complaint with respect to the father’s roster, which the father is required to give her in advance. 

8. Both the initiating application and the contravention application were brought in circumstances where the mother moved with the child, [X], to Town A in NSW without the father’s consent and in knowledge of his opposition to that course.  The mother has family in Town A.  On that occasion, the matter was finalised with the mother ordered to return to Victoria with [X] within 60 days, and that time frame was given to give her the opportunity to make arrangements for a return.  The mother has returned to Victoria with [X] in compliance with that order. 

9. On 2 November 2018 the mother filed this current application on an urgent basis.  The mother relies on the affidavit she prepared in support. She appears for herself today, and has spoken to a duty lawyer.  As I have already indicated, the mother refers to difficulties with the father’s roster, and also refers to increased difficulties with the father since he has re‑partnered.

10. The mother’s move to Town A was prompted by a breakdown in a relationship that she was in where she was living with her partner in Town C.  The mother says that she contacted both fathers about the move, and told them that she did not have anywhere to go and did not have any assistance with the children. The mother has another child, [A], from a previous relationship. She said that [A]’s father understood and was agreeable to that move.

11. The mother says that whilst she has a property in Town B, it is leased, and she says that she is unable to break the lease, and the tenants are in that property until February 2019.  She does not provide any documentary evidence of having given the tenants notice to vacate.  Currently the mother is staying with her brother in Suburb K, which she says is a temporary arrangement, as he and his family will be moving as he is in the [employer omitted] and has been posted elsewhere.

12. The mother says that she has the support of her mother, who she says is very unwell with cancer, and also has the support of her sister in Town A.  She says that she was able to obtain work there, and that both children became settled there very quickly.  She says that [A] remains in Town A, refusing to return with her to Victoria.  The mother says that both children have been suffering from the stress and tension, that the sisters miss each other.

13. She also raises allegations, it seems, against both the father and her former partner, though this was somewhat unclear.  It is of some significance that when the mother was represented, no issues were raised in the mandatory notice of risk filed on her behalf, whereas in her current notice of risk she raises issues, particularly with respect to her oldest child [A] and her refusal to return to Victoria, and refers to past abuse from the father. She makes other allegations where she says that she acknowledges the importance of the father’s and [X]’s relationship, and is not concerned if he spends time on weekends and holidays, but would be concerned if it was a longer period.

14. The mother says in Court today that she acknowledges that she has done the wrong thing, and that she assures the Court that she will ensure that the father has a relationship with [X].  In her application for final orders, she does not particularise what arrangements she says would be appropriate, and does not adopt the orders that were made on a final basis with respect to the holiday periods. She says before me today that the father could have [X] for the whole of the Christmas school holidays.

15. The father has filed a response to the mother’s application and opposes her application to relocate on an interim and final basis.  He seeks an order that [X] live with him, pending a final hearing, in the event the mother returns to Town A without [X].  If the mother remains in Victoria, then the current orders would remain in place.  The father raises several concerns in his affidavit, which includes a real concern about whether or not the mother would actually facilitate his relationship with [X] if she is permitted to relocate, particularly given the history that I have outlined.

16. He says that he is concerned that the mother raises issues about her mental health, including referring to her being suicidal in a night on 28 September 2018, and says it causes him concern about her capacity to care for [X].  He says that his visits with [X] since the return have been positive.  He says that the mother has created a situation where she is hoping the Court will be forced to take the view that she should be permitted to relocate to Town A on an interim basis, and says that despite having 60 days to make arrangements, she has not provided any evidence of having served the tenants with notice. 

17. Significantly, [X] has remained enrolled at her school in Town A. The father made inquiries with the principal, who indicated in an email that is attached to his affidavit that the mother informed the school that [X] would be absent for one week from 22 October 2018, as she was attending Family Court, and then on 29 October 2018 informed the school that she would be absent for a further two weeks.  That is of some significance.

18. It is concerning that [X] has not been attending school, and has been receiving some work remotely from the school she attended in Town A.  It is concerning that whilst the mother complied with order to return to Victoria, she did not ensure that [X] attended school.  As I indicated during the course of submissions, the issue of whether or not the mother is permitted to relocate to Town A on a final basis is one that will be determined with the benefit of expert evidence, an independent children’s lawyer, and also with the ability for the evidence to be tested.

19. She does not need to show compelling reasons for the relocation, and it may well be that on a final basis she is permitted to relocate.  One of the issues that will need to be addressed will be how the father’s relationship with [X] can be maintained if she is permitted to relocate, and the mother’s willingness and capacity to facilitate that relationship. 

20. I certainly accept that the mother does not want to be in Victoria, that she wants her daughters to be reunited, and that she says Town A is an answer to her problems.  She says that she has got work there, but cannot get work in Victoria.  As I also indicated, relocation cases are cases that, except for extraordinary circumstances, should be determined on a final basis with the benefit of evidence being tested and not on an interim basis. It has also been said in many decisions that the Court does not condone unilateral relocations.

21. Nevertheless, the decision that I must make is not about punishing either parent.  It is about considering what is in [X]’s best interests, looking at the limited information that I have at this stage, not being able to determine issues of contested fact, and taking into account the orders that are in place and the recent events. 

22. The father’s primary position at the hearing today is that pending a final hearing the mother should remain in Victoria with [X], [X] attend a school in Victoria, and the current orders remaining in place.  The father’s secondary position is that if the mother does not remain living in Victoria pending a final hearing, that [X] should live with him.  In his affidavit he had indicated that his partner could look after [X] while he was away for work. 

23. I raised a concern during the course of the submissions that on the father’s proposal, [X] would be cared for by someone who is not a parent for a significant period of time, which would be unsettling for her, given the current circumstances.  After an adjournment, the father has indicated that he will take time off work, and will undertake not to work until at least 31 January 2019, noting that the matter was listed for what was supposed to be the first return date of this application before Judge Burchardt in Dandenong on 31 January 2019.

24. It is now fairly late into the school year and the Christmas holidays are coming up.  It is my view, having considered the material before me and the authorities, that it is not in [X]’s best interests to allow the interim relocation.  I will make orders that, provided the mother remains living in Victoria, whether in Melbourne or in an area close to the father, that [X] remain living with her, and the current orders remain in place.

25. In the event that the mother elects to return to Town A without [X], then I will order that [X] live with her father, provided that her father takes leave from work and is available to care for her full-time.  I will make orders if that occurs that [X] spend time with her mother on alternate weekends during the school terms, either in Victoria or Town A, as elected by the mother, and the orders with respect to Christmas school holidays and the other ancillary orders will remain in place.

26. I will appoint an Independent Children’s lawyer, and request that the Independent Children’s Lawyer meet with [X] prior to next occasion that the matter is in court before Judge Burchardt on 31 January 2019.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 17 December 2018