DUKE & WILLIAMSON

[2014] FCCA 3141

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUKE & WILLIAMSON [2014] FCCA 3141

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged 4½ – unilateral relocation of child from (omitted) to (omitted) by mother – child lives predominantly with mother and spends weekend time with father – distance between two locations approximately 190 kilometres – mother proposes same arrangements – father seeks mother’s return to (omitted) but does not seek to change child’s primary carer – best interests – consideration pertaining to relocation – hearing ordered to be expedited.

Legislation:  

Family Law Act 1975

C & S [1998] FamCA 66
U & U (2002) FLC 93-112
Morgan & Miles [2007] FamCA 1230
D and S V (2003) FLC 93-137

Applicant: MR DUKE

Respondent: MS WILLIAMSON

File Number: ADC 3989 of 2014

Judgment of: Judge Brown

Hearing date: 27 November 2014

Date of Last Submission: 27 November 2014

Delivered at: Mount Gambier

Delivered on: 27 November 2014

REPRESENTATION

Counsel for the Applicant: Mr Nelson

Solicitors for the Applicant: Bersee Legal

Counsel for the Respondent: Mr Praolini

Solicitors for the Respondent: Degaris Lawyers

ORDERS

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. The parties have equal shared parental responsibility for making decisions concerning the long term care, welfare and development for the said child X born (omitted) 2010.

2. The child X born (omitted) 2010 live with the mother.

3. The child spend time with the father each weekend from 6:00pm Friday until 5:00pm Sunday with the child to be exchanged at the (omitted) Police Station.

4. The father spend time with the child for special occasions during the adjournment as follows:

   (a)For Christmas school holidays from 6:00pm on 23 December 2014 until 6:00pm on 5 January 2015;

   (b)From 6:00pm on 12 January 2015 until 6:00pm on 19 January 2015;

   (c)The father’s time pursuant to paragraph 4(a) above be suspended from 3:00pm Christmas Day until 10:00am on Boxing Day;

   (d)For the first week of the April short school holidays from 6:00pm on 10 April 2015 until 17 April 2015; and

   (e)From 11:00am on Good Friday until 6:00pm Easter Monday.

5. This matter be listed for final hearing before Judge Brown on 12 & 13 May 2015 at 10.00am in Mount Gambier NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.

6. The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 14 April 2015.

7. The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 28 April 2015.

8. On or before 28 April 2014 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.

9. The applicant pay such daily hearing fee as required pursuant to the Family Law (Fees) Regulations 2012.

10. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 20 March 2015.

11. The family assessment to deal with the following matters:

    (a)to include interviews with the parties, the child and relevant family members;

    (b)observed interaction between the child and the parties;

    (c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

    (d)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975;

    (e)any other matters that the family assessor considers important to the welfare or best interests of the said child.

12. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

13. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

14. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference

NOTING:

A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court

1. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ADELAIDE

ADC 3989 of 2014

MR DUKE

Applicant

And

MS WILLIAMSON

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally, immediately following the interim hearing.  Given the controversy surrounding the matter and the fact that the matter has been listed for final hearing next year in Mount Gambier, it is appropriate that the reasons be transcribed and released to the parties concerned.

2. The matter of Duke & Williamson is listed before me today. The applicant in the proceedings is Mr Duke and the respondent is Ms Williamson. The parties in this matter are concerned about interim or provisional arrangements for the care of their child, X, who was born on (omitted) 2010. 

3. Mr Duke commenced these proceedings on 3 November 2014.  At his request the application was listed urgently before the court.  The reason why the application was listed urgently was because he was anxious that the court make orders which would prevent the respondent mother from moving, with X, from (omitted) where she, X and Mr Duke had hitherto lived, to (omitted) in the (omitted) region of South Australia. 

4. It is common ground between the parties that (omitted) is approximately 190 kilometres north of (omitted) and it is, I suppose depending on how fast you drive, about a two hour drive.  From the father’s perspective, it is a significant distance, which will impact upon his relationship with X.

5. Mr Duke and Ms Williamson were involved in a relationship with one another from 2008 until early 2011.  They have never been married.  Accordingly, they separated when X was an infant.  Since the parties separated Mr Duke has formed another relationship and has another child, Y, who is a little over three years of age, having been born on (omitted) 2011. 

6. It is clear from Mr Duke’s affidavit that he loves X very much indeed and so do other members of his family, particularly his mother, who obviously is X’s grandmother.  It is also Mr Duke’s case that X has many family members in the (omitted) area, who are also very interested in X’s care. 

7. Mr Duke is an (occupation omitted).  He (duties omitted) and he is often away from home but he has a commitment that he will always be home on the weekends, so he can spend time with his family, including X.

8. He usually finishes work on Fridays between 4 and 6 in the evening and has X until the following Sunday afternoon.  His fiancée is the person who collects X from Ms Williamson and I understand that she is Y’s mother. 

9. At any event, on 26 October last, Mr Duke got a text message from Ms Williamson stating that she would soon be moving to (omitted). From Mr Duke’s perspective this was a complete shock and he felt that he was entitled to be consulted about such a move because he was X’s father and because the move, for obvious reasons, would have implications for his relationship with X

10. It was against that background that he commenced these proceedings, as quickly as he could.  There is no doubt that Mr Duke made it clear to Ms Williamson that he did not agree to X going to (omitted), but notwithstanding that Ms Williamson has moved to (omitted).  Mr Duke now wishes the court to make an order that X come back to (omitted).

11. However, on both an interim and final basis, Mr Duke proposes that X would continue to live with his mother, which has been the position since the parties separated.  Accordingly, in effect, Mr Duke wants to make an order compelling Ms Williamson to live in (omitted) with X.

12. I think it is implicit from this aspect of his application that Mr Duke concedes that Ms Williamson is a capable parent and, as such, it would not be in X’s best interests for there to be a change in his living arrangements. 

13. It is not the position that Mr Duke seeks an order that X, either on the interim or on a final basis, live with him.  However, he wants the court to make orders as to which would affect Ms Williamson’s choice as to where she can live.

14. Mr Duke has outlined his fears about the move of X from (omitted) in his affidavit.  He fears that if X remains in (omitted) he will become estranged from his father and from his extended family in (omitted). 

15. It is also Mr Duke’s position that there are fewer services and opportunities in (omitted) because it is a much smaller centre and a much more isolated one.  So Mr Duke can see no positives in the move.  He speaks in his affidavit of his close relationship with his son.  Ms Williamson has recently responded to the application.  It is her desire to live with X in (omitted). 

16. She has deposed in her affidavit that she has a number of other children about whom she has to think.  These include her teenage daughter A, her son, B, who was born on (omitted) 1997, as well as X.  It is her case that she is unhappy and has been unhappy in (omitted) for a significant period of time. 

17. She concedes that she has significant family connections in the town, where her parents live but she says that she was living in her parents’ home only because her rental accommodation finished and she could not get another lease in (omitted) and it was difficult, with her family of three children, to live with her parents. 

18. She has a close relationship with her ex-husband who is B’s father.  He is a gentleman who has apparently also moved to (omitted). Ms Williamson sees great opportunities for herself in (omitted).  She deposes that she has entered a lease in (omitted) - she did that on 31 October - and her oldest child, A has apparently found work there. 

19. It is her case that X is well settled in (omitted).  I take that statement with a pinch of salt because it is patently the case that the child has only been in (omitted) for a matter of weeks, at best.  As I say, Mr Duke has wasted no time in bringing these proceedings. 

20. B is also said to have relocated with his mother, although apparently he is currently in (country omitted) on a student exchange.  I am not sure when he will be back, but as I say, Ms Williamson’s oldest daughter, A, has apparently been able to get a job in (omitted). 

21. So from Ms Williamson’s point of view, (omitted) is a much happier place for her, much better for at least two of her children and she sees opportunities for X in (omitted).  For obvious reasons, she is likely to be optimistic about (omitted), whereas Mr Duke is not. 

22. Ms Williamson proposes that Mr Duke see X every second weekend from 5pm or 6pm Friday until 5pm the following Sunday and for half of each school holiday periods.  At present there are no arrangements for school holidays.  So Ms Williamson concedes that this is a reduction in time in terms of weekends but likely to be an increase in terms of school holidays.

23. However, if necessary, pending trial, she would agree to X spending each weekend with his father, which is the arrangement as currently, apart from the fact that X will obviously travelling a great deal more.  Whether this is sustainable in the longer term, I do not know as yet.

24. From her perspective, the arrangement she propose will enable the child to maintain a meaningful level of relationship with his father.  She would categorise herself as the child’s undisputed primary carer.  As such, she has some entitlement to live where she wants to.  She wants to live in (omitted).

25. The problem with this case is one to which I have already alluded.  In many ways, it would be a far easier case if Ms Williamson had moved very far from (omitted).  In such circumstances I would have had little difficulty in directing that the child be returned to (omitted) because the law does not approve of one parent taking it into his or her hands and making a major decision about where a child is to live, without either the other parent being consulted and approving that decision or the court making a decision on a fair and level playing field, not one tilted to the advantage of one parent achieved through self-help or unilateral action.[1]

    [1]  See C & S [1998] FamCA 66

26. From Mr Duke’s position it is unfair that Ms Williamson has done exactly what she wanted, without a proper word with him and then, as a consequence of his application, comes to court and says to the court, in effect “Well, you make what I’ve okay now for me”. 

27. From his point of view that is just unfair and if I do what Ms Williamson wants.  It will leave an unpleasant taste in his mouth.  He will think that the system is weighted against him and it is, in effect, allowing one parent to do the wrong thing. 

28. The difficulty with this case is that X, in theory at least, will be able to see his father regularly and the two will be able to maintain a relationship with one another.  190 kilometres is a significant distance but it is not so great that it means that the time between father and child can only be in school holidays or irregularly during school terms. 

29. The parties are country people and country people are used to driving distances to go to social occasions and to do their business.  No one has told me how much it will cost to drive the distance involved. 

30. I suspect from Ms Williamson’s point of view to drive regularly to either (omitted), (omitted) or (omitted) itself, from (omitted) would be a significant expense no doubt depending on the cost of petrol.  I do not know how workable her car is or anything about that. 

31. What Mr Duke, in effect, wants me to do is to say to Ms Williamson – you must live in (omitted), whether you want to or not.  However, I (Mr Duke) do not want to become X’s main provider of care, because that it not likely to be in X’s best interests.  You can continue in that role, but you have to do it where I tell you.  You have to live in (omitted).  By necessary implication, Mr Duke concedes that Ms Williamson is doing a good job looking after X.

32. There is a fundamental difficulty with that position and it is this.  Whatever I do in this case, I have to be satisfied that the outcome is the one that is best for X.  It is his interests which are paramount.  But in this case, there are also the interests of a number of other people, which will be affected by the decision of the court, including the mother and the father and no doubt grandparents on both the maternal and paternal sides.

33. The High Court has pointed out that I am not in a position to ignore a custodial parent’s legitimate expectations that he or she is entitled to live where and in the manner of his or her choosing.  Ms Williamson says she wants to live in (omitted).  She has explained why that is so.  I do not think her reasons can be described as being capricious in any way.

34. If Ms Williamson says, I will not come back to (omitted), I cannot compel her to do so.  The only thing I can do is direct where the child lives.  That would mean, in effect, that I would have to place the child in the care of Mr Duke.  He does not seek that outcome.  It may not be workable for him because he works interstate as a (omitted).  So there are significant issues and problems arising in the case.  It is not simply a matter of putting things back the way they were.  To some extent, the genie has got out of the bottle.

35. Very often, in unilateral relocation cases – that is cases where one parent has moved a child a significant distance away from the other parent concerned without proper consultation – the court gives the parent an unpalatable choice – either return pending final hearing and the child can continue to live with you or the child will have to live with the other parent concerned, in the location, which you have left.

36. Invariably, if I give a parent in Ms Williamson’s position that kind of choice, that is, if she returns to live in (omitted) the child live with her, but if she declines to do that the child will live with the father, the parent concerned chooses to put care of the child above his or her legitimate aspirations and return.

37. Gaudron J, in the case of U & U,[2] has said that such a scenario is inherently sexist, because it more often than not applies to women rather than men and restricts their options unfairly. 

    [2]  U & U (2002) FLC 93-112

38. The thing about cases involving a relocation element is that I have to, and I have been directed to do this by the High Court, give each case an idiosyncratic and careful examination.  Each relocation case is unique.

39. Usually, that is better done at the final hearing stage, when all the evidence is available.  It is quite often imprudent to do that at an interim stage.  Ordinarily the court should only allow an interim relocation if there is some special emergency surrounding the situation.[3] 

    [3]  See Morgan & Miles [2007] FamCA 1230

40. From Ms Williamson’s perspective there was no emergency.  She did not have to leave (omitted) because she was in danger or facing some form of crisis.  Although it was difficult and uncomfortable for her, she could have continued to live in her parent’s home.

41. She did what she did because it was what she wanted to do, and she knew that Mr Duke did not approve, but she went ahead anyway.  So, as I say, I have some qualms about approving the mother’s position retrospectively.  However, at the end of the day, I am not in a position to ignore Ms Williamson’s legitimate aspirations. 

42. The law recognises that as part of a consideration of X’s best interests I have to consider how he will benefit from having a meaningful level of relationship with not just his mother, but also with his father, and indeed other members of his family. 

43. As Kaye J[4] has pointed out meaningful relationship does not mean the best possible relationship.  In this day and age parents very often have a meaningful level of relationship with their child or children through interacting with their children on an alternate weekly basis. 

    [4]  See D and S V (2003) FLC 93-137

44. The mother’s move does not mean necessarily that X will have no relationship whatsoever with his father and members of his father’s family.  It may not be the best possible relationship, but it can still remain a meaningful level of relationship. 

45. There are also perils, I think, for X, if I compel Ms Williamson to do something she does not want to do, given that she is X’s undisputed primary carer.  Clearly, if she comes back to (omitted), she will not be particularly impressed with the actions of Mr Duke, which will have curtailed her personal freedom to a significant degree and this is not going to improve their parenting relationship together. 

1. The parties’ relationship with one another, as parents, is not the best relationship at present.  That is implicit from the fact that the parties separated when X was young, and they presently do not get on particularly well.  If the tension increases, this is not likely to be helpful to X.

2. All these factors have to be balanced against one another.  In addition, the matter can be heard in a comparatively short period of time, about six months away.  Expediting a final hearing is often an appropriate response to a relocation case, particularly if adequate arrangements can be put in place to ensure that the child concerned in the case can maintain adequate relations with parents and other significant persons.

3. A family report can be prepared prior to the trial, and in that timeframe there will be a long school holiday, a large portion of which X will be able to spend with his father.  Arrangements can also be made for special occasions. 

4. This is a difficult matter and I am troubled by it.  I am concerned that if I do what Ms Williamson wants it will send the message to others in her position that unilateral relocations are okay.  They are not okay.  Parents are required to discuss important decisions concerning the child, one of which is the child moving away from one of his or her parents.

5. The other side of the coin is that I have no power to direct where Ms Williamson personally is to live.  Her reasons for wanting to move to (omitted) are understandable, given her personal circumstance.  It is clearly the case that it would not be in X’s best interests to live with a person other than his mother, even if Mr Duke was seeking such an order. 

6. In those difficult circumstances, in the short to medium term, I have come to the conclusion that X’s best interests will be served if he continues to live with his mother, and that should be in (omitted). 

7. I am satisfied that Mr Duke can have a close and meaningful relationship with his son. I recognise his disappointment and his annoyance with Ms Williamson, but I do not think it would be in X’s best interests, balancing all the considerations which I have to balance, for him to live with an unhappy mother in (omitted) pending a final hearing, which will not be a long time away when, at the end of the day, I cannot ignore the mother’s legitimate expectations that she can live how and where she wants to live and she remains the child’s undisputed primary custodian.

8. So at this point, pending final hearing, that is my decision.  However, until the hearing, during school terms, I think the mother should be kept to her word that she will ensure that the child spends each school term weekends with his father, which is essentially the same arrangement as now.

9. I will direct that the child be exchanged at (omitted), so the travelling is shared.  So, I foreshadow the orders, which I will make pending the parties having some discussions about how the forthcoming long school holiday will be divided, and then the Easter school holiday will be divided, and what the arrangements made for the special days of Christmas will be.

10. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:  5 May 2015