DOWNS & DOWNS

[2019] FCCA 1726

FEDERAL CIRCUIT COURT OF AUSTRALIA

DOWNS & DOWNS [2019] FCCA 1726

Catchwords:
FAMILY LAW – Interim orders – whether in the best interests of the children to make interim orders significantly affecting arrangements for the children – unilateral relocation – whether it is practicable for the mother to return with children.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(3), 65DAA

Cases cited:

U v U (2002) 211 CLR 238

Goode v Goode (2006) 206 FLR 212

Morgan v Miles (2007) 312 FLR 114

Applicant: MS DOWNS

Respondent: MR DOWNS

File Number: ADC 953 of 2019

Judgment of: Judge Young

Hearing date: 3 June 2019

Date of Last Submission: 3 June 2019

Delivered at: Darwin

Delivered on: 3 June 2019

REPRESENTATION

Counsel for the Applicant: Ms Kildea

Solicitors for the Applicant: Farrelly Legal

Counsel for the Respondent: Mr Anderson

Solicitors for the Respondent: Hbh Legal

THE COURT ORDERS UNTIL FURTHER ORDER

1. That the parties have equal shared parental responsibility for the children [X] born … 2010, [Y] born … 2013 and [Z] born … 2016 (collectively referred to herein as ‘the children’).

2. That the children live with the mother in Adelaide.

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

   (a)For the weekend at the conclusion of week 6 of [X]’s school term as follows:

   (i)For [X] and [Y] from 9:00am Saturday to 4:00pm Sunday; and

   (ii)For [Z] from 9:00am to 4:00pm Saturday and 9:00am to 4:00pm Sunday,

   with such time to take place in Suburb B and changeover to take place at Street A, Suburb B;

   (b)During [X]’s school terms on each alternate weekend in Adelaide commencing on 25 May as follows:

   (i)For [X] and [Y] from 4:30pm Friday to 4:30pm Sunday;

   (ii)For [Z] from 9:00am to 4:30pm on Saturday and Sunday,

   with such time to occur in Adelaide and changeover take place at the maternal grandparents’ home.

   (c)During [X]’s school holidays for the first week of holidays, provided the father has secured leave from his employment, as follows:

   (i)For [X] and [Y] from 9:00am Saturday to 4:00pm the following Saturday with such time to take place in either Adelaide, Suburb B or Suburb K;

   (ii)For [Z] from 9:00am to 4:00pm on Saturdays and Sundays that the older children are spending time with the father pursuant to paragraph 3(c)(i) herein with such time to take place at either Suburb B or Adelaide

   Changeovers to take place at Street A, Suburb B.

   (d)Via Skype each Friday evening that the children are not otherwise spending time with the father at 6:00pm Adelaide time;

   (e)Such further and other times as agreed between the parties in writing.

4. That the parties be restrained by injunction from:

   (a)Selling, disposing and/or encumbering the real property located at Street A, Suburb B, more particularly described in Certificate of Title Volume … Folio … without the written consent of the other party or court order.

   (b)Disposing of the $103,000 held by the mother in the ING Bank, BSB … Account number …, without the written consent of the other party or court order.

5. That both parties comply with any written request for discovery within 21 days of a receipt of such request.

6. That in the event no agreement is reached as to the value of any of the following properties, 35 days prior to the Conciliation Conference the parties engage a valuer to value the real properties at the parties joint expense:

   (a)Street A, Suburb B;

   (b)Street C, Suburb B; and

   (c)Street C, Suburb D.

7. That in the event no agreement is reached as to the identity of the valuer the mother is to nominate three valuers and the father is to select one from that list.

8. Liberty to apply.

9. That the matter be listed for a check mention on 22 October 2019 at 9.30am at the Federal Circuit Court, Adelaide for mention with the solicitors given leave to attend by telephone on that occasion.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 953 of 2019

MS DOWNS

Applicant

And

MR DOWNS

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 is an interim hearing, in substance, of an application by the father. The application was not brought by way of a recovery application but rather brought by way of interim orders sought in a response that the mother in this case relocate the residence of three children back to Town D in Western Victoria where they had been living until 8 March 2019.

3. The children are [X] who is eight, [Y] who is five, and [Z] who is two years old.

4. The background to the matter is important and it is, at least in very broad terms, reasonably straightforward.  The parties lived in Adelaide for many years.  They had previously lived in Victoria but in the later years of their marriage lived in Adelaide for some years, at least since 2009, according to the evidence of the mother, but in any event, it was a significant period of time.

5. Both parties had grown up in Town D and at one point both parties had family there, though the mother says that she no longer has any family living in Town D.

6. While the parties lived in Adelaide the father was employed, it would appear, for a significant period of that time as a fly-in fly-out worker, in the north of South Australia.  The mother, who has qualifications in employment, was working, at least some of that time, in employment in that field in Adelaide.

7. Towards the end of 2017 it appears that the parties discussed returning to live in Town D and did so in January 2018. The children commenced school there, or at least the older two boys, [X] and [Y], would have commenced school, or perhaps only [X], I am not sure about [Y]. [Z], of course, is too young for school.

8. At that point the father was continuing to work as a fly-in fly-out worker.  The mother says, and this is not denied by the father, that he was fly-in fly-out from Adelaide, so he would, presumably, get himself to Adelaide and then be flown by the company to the north of the state and return.

9. The mother says that one of the agreements between them around about that time was that if the parties moved to Town D he would cease working as a fly-in fly-out worker.  She complains, and it is not possible for me to make any finding about this, that he did not keep his end of the bargain and continued to work as a fly-in fly-out worker.

10. If that was the case, it appears from looking at the financial position of these parties, which is far from healthy, that that may have been a sensible decision for him to make.  In any event, he says that he reduced the time he was spending working in the north of the state of South Australia in order to spend more time at home in Town D with his young family.

11. In any event, the parties separated in June 2018.  It appears that the mother and the children continued to live in the former matrimonial home in Town D until October 2018 when the mother moved out and began to live in a rental property.  It seems that around about then she began to live with her present partner, Mr E.

12. All through the period that the mother lived in Town D she was unemployed.  I would infer that at the beginning of the period she would have had a very young child, [Z], and it would be probably a decision that she had made not to seek to employment.  I do not know that that was the case but after the separation and until her relocation to Adelaide in March she was not employed.  That is an agreed position. 

13. The father says that had she wished she could have sought employment and says there was employment available in the Western District of Victoria for someone with her background, skills and qualifications.  The mother says that that is not the case.  I am unable to make any finding about that, however, in my view, it is significant that up until the period of March 2019 she was in fact unemployed and she said that she was in receipt of Centrelink payments. 

14. The father continued to work, as I say, as a fly-in fly-out worker, according to his affidavit material, until March 2019, the month that the mother relocated to Adelaide.  The mother has said in her affidavit material that when she decided to relocate, and there is no question that she did so without any notice whatsoever to the father, she said that she did so on the basis that he was working as a fly-in fly-out worker who would be travelling through Adelaide regularly, with the implication that the children would be able to spend time with their father in that way.

15. She says that after she relocated on or about 8 March 2019 (it appears to be an agreed date), the father stopped work as a fly-in fly-out worker and found employment in Town F, which is a town near Town D, I understand about 30 minutes’ drive away, with a cleaning company where he apparently earns about $75,000 a year at the moment.

16. As mother has made a significant or a deliberate point of asserting that until she relocated to Adelaide the father was working as a fly-in fly-out worker, and he has not rejected that or provided any detailed rebuttal of that claim, I infer that it is likely that the father has decided to take up full-time work in Town F after he became aware of the mother’s relocation.  Whether or not that is the precise timeline, in a way, is not so much the point. 

17. The father’s present financial position appears to be somewhat unstable, or at least unhealthy.  His financial statement says that his expenses are in the region of $100,000 a year or more and his income is, as I have said, about $75,000 a year.

18. He is not paying child support at the moment.  There is an assessment for child support at different times that he failed to pay over the past 12 months or so.  The father has notified the child support agency that his income is nil.  Perhaps that reflects him changing between jobs. I would guess that would be the reason for that, although I do not know.

19. In any event, the result is that when the father swore an affidavit filed on 31 May 2019 he said that he was assessed to pay a child support of $202.55 a week.  He was paying $27 a week to reduce the arrears, which then stood at $3,266.  It was an agreed positions today that the father’s arrears of child support are $4,083 and there have been no payments or credits to his account since 11 April 2019, a period of approximately two months.

20. I do not know why he has not paid any child support.  It may be that it is an ill-advised response to the mother’s unilateral relocation.  It may be that he cannot afford to pay child support.  Given my brief survey with Mr Anderson, counsel for the father, of the financial position of the parties, I consider that it is very possible that the reason he is not paying child support is that his pressing expenses, including responsibility for mortgage payments on the various properties owned by the parties simply so far exceed his income that he cannot afford to pay.

21. The father, through his counsel, said that the financial position of the mother would be much-alleviated if she began to access the $100,000 or so cash that she presently has, which is proceeds of sale from a property owned by the parties, or by the mother. According to my brief survey of the financial position of the parties, their net assets across a number of properties, taking into account various liabilities, would appear to be in the region of $50,000.

22. In my view, having regard to the fact that both parties are legally represented at this stage, I suspect the $50,000 net will not last very long and it may be that the wife’s $100,000 will be very rapidly consumed by the parties’ liabilities, which include a significant liability owed to the Australian Taxation Office.

23. In my view, there does not appear to be any surplus whatsoever for these parties to access.  I do not consider that there is any real prospect, should the mother go back to live in Town D with these children, that she will have any substantial money or property to fall back on.

24. In my view, the most likely scenario is that if she moved back to Town D she would return to the position she was before she left Town D, that is, she was unemployed, in receipt of welfare, and with the father not paying his child support assessment, and with there being no real prospect of the parties digging themselves out of what appears to be a financial hole.

25. Mr Anderson points out of course, rightly so, that given that Mr E, the mother’s partner, was apparently supporting her in Town D, should she move back there is no reason why he should not continue to support her, assuming he can return to his employment.  Whether that is the case or not, I do not know.

26. Of course, the question on interim hearing is not whether or not parties are going to be financially worse off or better off following a particular course.  The question is what is in the best interests of the children. In circumstances where these three young children are primarily cared for by their mother, who has been their primary carer, it is not in question, for all of their lives, the prospect of sending a mother back to live in Town D pending trial in circumstances where I am satisfied she is likely to be living in poverty is one that has implications for the best interests of the children.

27. The mother says that housing is not readily available in Town D.  The father says that there is plenty of rental housing available.  I do not know.  I do not propose to make any finding about that but if the mother is to return to housing, it will be rental housing.  The former matrimonial home is apparently occupied by the father’s present partner and her three children, so the only prospect for her to live is to find rental accommodation in Town D or Town F. 

28. There is some assertion by each party about what the rental costs will be living in that area, Town D, Town F or perhaps Town G or even across the border in Town H.  I cannot make any findings about those matters but I am satisfied that the mother will be likely to pay rent. I am satisfied that she is very likely to be unemployed. I am satisfied that the father is unlikely to be paying child support, at least regularly, and I am satisfied that, based on his current record, that there is no early prospect of him liquidating his arrears of child support.

29. On the other hand, following the mother’s unilateral relocation, and I am satisfied that is what it was, the mother has found employment in Adelaide in her field as a professional.  She is employed as a professional with a company in Adelaide, a company for whom she has previously worked and who have provided, in substance, a reference for her which suggests to me that she is likely to be employed there permanently if she wishes.  She is employed four days a week and earns $780 a week at the moment.  Mr E, with whom she lives, is presently unemployed but he is looking for work.  So at least she has some income while she is here in Adelaide.

30. The other factor of course is that the older two children, or at least [X], the older boy, has returned to Suburb J Primary School where he went to school before the parties moved to Town D.  It may be that [Y] was going to preschool there, I do not know.  He is now five, so in 2017 he would not be going to school.  He may have gone to kindergarten or preschool there, I do not know, but in any event, as far as [X] was concerned, he has returned to a school he is familiar with.

31. The legal principles to be applied at an interim hearing of this kind are broadly as follows and there is no disagreement between the parties about this.  In the case of Morgan v Miles the Full Court has made clear that there ought not generally be important decisions made about arrangements for children on an interim hearing because an interim hearing, which involves a truncated assessment of the issues, is not an appropriate vehicle. There is no cross-examination nor testing of evidence.

32. I certainly agree that that is the case.  However, in this case I am satisfied that, should the children and the mother be forced to return to Town D, they would return to live in poverty and in a very uncertain financial position. 

33. The Full Court in Goode v Goode, an older case, said that ordinarily if there is a well-settled arrangement for children, that ought not be lightly disturbed and ought not be disturbed in the interim hearing. 

34. In my view, that is a principle not easily applied in this case.  I am not sure that there were well-settled arrangements concerning those children prior to the mother’s relocation in March 2019.  As is clear, the parties relocated to Town D at the beginning of last year.  They separated after five or six months of living in Town D, in June 2018.

35. It appears that the mother certainly re-partnered soon afterwards in October or thereabouts when she began living with Mr E, along with the children, and lived in rental property.  It seems that at some time, and when is not stated in the affidavit material, the father’s partner, with her three children, moved in to the former matrimonial home.

36. Throughout this the father was working as a fly-in fly-out worker in the north of the state and it is only at the time of the mother’s relocation that he began to live permanently in the area, that is, taking full-time work in Town F. 

37. I am far from satisfied that there are well-settled arrangements concerning these children.  It appears to me that over the past few months their arrangements have been particularly unsettled and, as I have said, prior to January 2018 they lived in the Adelaide region, both parties and the children, and [X], the older child, went to the school that he is attending at the moment. 

38. On an interim hearing the same legislative pathway is to be followed as in a final hearing. The primary considerations in determining the best interests of the children are the benefit to the child of having a meaningful relationship with both of the child’s parents and, secondly, the need to protect the child from physical or psychological harm, et cetera.  Fortunately in this case there does not appear to be any issue around that.

39. The primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents. In the circumstances of this case that means the benefit to the children of having a meaningful relationship with their father.

40. Having regard to the ages of these children, particularly [Y] and [Z], who are five and two, I think it can be inferred that a meaningful relationship would require that the children be able to spend regular, indeed substantial and significant, if not equal time, with their father.  That is particularly the case of [Z], who is at a sensitive developmental stage.

41. The father’s proposal is simply that the mother be ordered to relocate the residence of the children to Town D and that the parties enter into an equal shared care arrangement.  There is no detail about it.  The mother’s proposal, of course, is that she be permitted to continue living in Adelaide or the Adelaide region and that the children spend significant and substantial time with their father.

42. As I understand her proposal, her interim proposal at least, is that [X] and [Y] would spend each weekend with their father from 9 a.m. Saturday to 4 p.m. Sunday, on alternate weekends from 4.30 p.m. Friday to 4.30 p.m. Sunday for [X] and [Y], the older boys, and from 9 a.m. to 4.30 p.m. on Saturday in Adelaide.

43. There is a proposal that the children spend school holiday time with their father with changeovers at Suburb B, which is a town I think about two-thirds of the way towards Town F from Adelaide.

1. Of course, the alternate weekend arrangement would involve the father, if he were to take that up, travelling every second weekend from Town D to Adelaide, finding accommodation on a weekend basis, and then travelling back.

2. No one has told me what the length of the journey is from Town D to Adelaide but I would guess it is about five hours.

3. The counsel for the father tells me that the road journey is about eight hours. Counsel for the mother tells me that the road journey is about six hours.  I do not make a finding about that.  However, I am satisfied that the journey is a substantial and time-consuming one and I am not satisfied that it would be a journey easily made.

4. I consider that there is a real prospect, should the mother remain living in Adelaide with the children and the father remain living in Town D, that the possibility of the children having a meaningful relationship with their father, particularly the younger children and particularly [Z], given his developmental stage, would be threatened.  I think there are likely to be serious difficulties in that arrangement. 

5. I might add that the father has not, anywhere in his affidavit material, said why he cannot return to the arrangements that applied up until March of this year.  In other words, not three months ago.  Those arrangements being that he was a fly-in fly-out worker in the north of South Australia flying out and flying in to Adelaide on a regular basis.  He has not canvassed that in his affidavit material, and while I give, of course, great weight to the injunction in Morgan v Miles that parenting arrangements, significant parenting arrangements, should not be decided on an interim hearing, one of the factors that will weigh heavily in the trial in this matter which has been set down for February of this year, some eight months away,  is whether or not it is practicable for the father himself to either relocate to Adelaide or take up some form of employment such as the form of employment he had until three months ago which saw him transiting regularly through Adelaide. It seems to me that one of the factors I can take into account on an interim hearing is the issues that will arise on a final hearing and indeed the prospects of a particular course being adopted at a final hearing.

6. In my view, if I give consideration to that factor, there appear to me to be very strong factors that would militate in favour of the mother being permitted to relocate to Adelaide. Not only the fact of her being entitled, her being the primary care of these children up until now and the need to have her role as a primary carer given appropriate weight, but the fact that in Adelaide she is able to be employed.  She is able to follow her career and the High Court has said in U v U and other cases that the Family Law Act is not to be used, as is often the case where there is a woman who is a primary carer, for men to hold women “hostage” in a particular locality.

7. All of those will be factors that will be very significant in the final hearing of this matter.  Based on the evidence I’ve heard, I think the mother’s case for relocation is strong and it appears to me that the father who has, really, an evidentiary responsibility, I will not talk about onus but an evidentiary responsibility to bring forward evidence in those circumstances about why it would be impracticable for him to relocate to Adelaide. He has not, in my view, begun to address that question in his affidavit material.  So it is for those reasons, at trial, that there is a strong prospect that the mother would be permitted to relocate with the children to Adelaide.

8. The other factors that I have to take into account, and if the father were to relocate or to resume his pre-March 2019 employment as a fly-in fly-out worker transiting through Adelaide, it appears to me there is no reason why these children would not have the benefit of a meaningful relationship with him, as I would infer that he would have the necessary income to be able to spend regular time in Adelaide with them, albeit it might be in a hotel or an apartment.

9. Turning to the additional considerations in section 60CC(3), the children have not expressed any views, having regard to their age. The nature of the relationship of the children with each of their parents and other persons: as I have said, it is not in contest that the mother has been the primary carer for these children all of their lives and there is no real evidence of the nature of the relationship between the children and their father but I’m sure that the children are attached to him.

10. (c) - the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in decision-making about long-term issues, spending time with the child or communicating with the child or the children. There is not sufficient evidence for me to form any view about that matter. 

11. (ca) - the extent to which each of the child’s parents has fulfilled or failed to fulfil the parents’ obligations to maintain the children: as I have noted, the father has not paid child support for a period of about two months and is more than $4,000 in arrears in child support and that the amount of those arrears appear to be increasing.

12. The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents: if the children remain living in Adelaide with their mother, they will be separated from their father but that must be seen against the background which I described that until 8 March or thereabouts, the father was employed and had been employed for some years as a fly-in fly-out worker who saw his children intermittently, albeit regularly, I am sure, but they were not living with him all of the time. It appears to me, given the absence of any evidence from the father on the issue, that it is open to him to simply re-establish that arrangement of seeing the children regularly as he flies in and out of Adelaide.

13. (e) - the practical difficulty and expense of the child spending time with or communicating with that parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact: there is no question that if the father remains living in Town D and, according to his counsel because of his commitments, financial commitments, is unable to afford to travel to Adelaide regularly to see the children that that will impact or substantially affect the children’s right to maintain personal relationships with their father.  That is very much the nub of this case.

14. For the reasons I have already canvassed, it appears to me that the practical difficulty and expense that the father complains of appears to be very much of his own making in that I infer from his silence in his affidavit about the mother’s allegation that he ceased fly-in fly-out work after she relocated that the present situation is of his own making. 

15. (f) - there is nothing in relation to the capacity of the child’s parents that I need to address. There is no evidence about that nor (g) or (h) or (i).  (j) – there is no evidence of family violence though there is some evidence that a family violence order was sought and obtained by the mother in Victoria but the background to that is far from clear. It is contested, in any event. It appears to relate to the mother being unwilling to see the father face-to-face without the existence of an order or him being importunate in his visits to the mother to discuss various things, importunate and unwelcome.

16. (k) - there is a family violence order applying, though the precise details of that I do not need canvas at the moment, and I do not propose to address the matters in (l) and (m).  The mother’s application is silent about the question of parental responsibility.  The father seeks shared parental responsibility.

17. I take it from that that parental responsibility is not in issue as things presently stand which requires this Court notwithstanding that the presumption does not apply on an interim hearing but because there appears to be agreement that there will be shared parental responsibility, I am required to have regard to section 65DAA. In relation to 65DAA(1), which requires the Court to consider equal or substantial and significant time with each parent, while that is technically the order that the father seeks, nowhere in his affidavit material does he explain how in a practical sense he proposes to care for these three children 50 per cent of the time, particularly for [Z] who is two years old.

18. The father’s position is that he is in full-time employment in Town F which holds him there.  I am not satisfied that on the father’s material that spending equal time is practical, even if the mother lived in Town D and returned to Town D.  So I do not consider that to be a practical arrangement and I do not consider it to be a practical arrangement either while the mother is living in Adelaide and the father is living in Town D, or if the mother is living in Town D and the father was working as a fly-in fly-out worker.  In other words, I do not consider equal time a practical arrangement under any of the scenarios put forward by either of the parties.

19. Substantial and significant time under subsection (2) – I consider that substantial and significant time is practical and appropriate under some of the scenarios outlined by the parties.  The father’s position is that because of his dire financial situation he cannot travel to Adelaide regularly.  That was an assertion.  I am not satisfied that it is correct but it is nevertheless an assertion that his position is that he cannot travel to see the children on, for example, the basis put forward by the mother for the children spending alternate weekends with the father.

20. I consider that it is likely to be practical if the father returned to the employment that he was in until three months ago, that is, as a fly-in fly-out worker transiting through Adelaide. I am satisfied that it is in the best interests of the children to make orders that they spend substantial and significant time with their father.  Whether he takes that up will be a matter for him.  For those reasons, I am not prepared to make an order that the mother relocate the residence of the children to Town D.

21. There will be orders that she, pending trial, be permitted to reside with the children in Adelaide.  I am going to make an order that the child spend substantial and significant time with their father.  There will be orders until further order that the parties are to have shared parental responsibility for the children and the children are to live with the mother and she be in Adelaide and I will make the time orders as set out in 2(a), and (c), (d) and (e) of the minute provided. 

22. I do not propose to make any other orders.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 24 June 2019