Eastlake & Eastlake

[2021] FCCA 376

FEDERAL CIRCUIT COURT OF AUSTRALIA

Eastlake & Eastlake [2021] FCCA 376

File number:	ADC 5946 of 2020
Judgment of:	JUDGE YOUNG
Date of judgment:	3 February 2021
Catchwords:	FAMILY LAW – parenting – interim hearing – whether the child should live with the mother or the father – whether there is an unacceptable risk of harm to the child in the mother’s care – where the mother has made a unilateral relocation – where the relocation is one hour from the child’s school and matrimonial home – where the child has primarily lived with the mother – where the father alleges the child is displaying sexualised behaviour – satisfied in the best interests of the child to live with the mother and spend time with the father – satisfied the child attend school proximate to the mother’s home – not satisfied there is an unacceptable risk of harm to the child
Legislation:	Family Law Act 1975 (Cth) ss 60CC(2),(3), 65DAA
Number of paragraphs:	29
Date of last submission:	3 February 2021
Date of hearing:	3 February 2021
Place:	Darwin
The Applicant	Appearing on his own behalf
Counsel for the Respondent:	Mr Anderson
Solicitors for the Respondent:	Websters Lawyers

ORDERS

ADC 5946 of 2020
BETWEEN:	MR EASTLAKE Applicant
AND:	MS EASTLAKE Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	3 FEBRUARY 2021

THE COURT ORDERS:

1. That the father deliver the child X born in 2014 to the mother by 6.30pm (SA time) today 3 February 2021 with changeover be outside the Suburb B Police Station failing which a recovery order do issue.
2. That the parties have equal shared parental responsibility for the child.
3. That the child live with mother.
4. That the child spend time with the father as follows:

a.   From 5.30pm on Tuesday 16 February 2021 (or 7.45am if it is a non- school day) to 7.45am on Friday 19 February 2021 (or 5.30pm if it is a non-school day) and each third week thereafter;

b.   From 5.30pm on Friday 26 February 2021 to 5.30pm on Sunday 28 February 2021 (or 7.45am if it is a non-school day) and each third week thereafter;

c.   At such further or other times as may be agreed between the parties by SMS Text Message.

5. That all changeovers occur at the Suburb B Police Station.
6. That the parties do all things and sign all such documents as may be required to ensure X’s ongoing enrolment and attendance at the Suburb C School with each party to be identified as an enrolling parent.
7. That the parties be restrained and an injunction is hereby granted restraining each of them from:

a.   Denigrating each other or any member of his/her family to or in the presence of the child or allowing any third party to do so;

b.   Discussing these proceedings or the allegations made in these proceedings with the child or allowing any third party to do so;

c.   Discussing current or future living arrangements with the children or allowing any third party to do so.

8. That pursuant to s.11F of the Family Law Act 1975 the parties attend reportable child dispute conference at the Federal Circuit Court of Australia Adelaide on 22 June 2021 at 10.00am with a family consultant, to discuss the care, welfare and development of the child X born in 2014 in an endeavour to resolve any differences between the parties in relation thereto with the parties to telephone the Case Co-ordinator Child Dispute Services on 1300 352 000 to confirm their attendance.
9. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.
10. That the court date on 9 March 2021 be vacated.
11. That the matter is adjourned to 6 August 2021 at 9.30am for mention at the Federal Circuit Court of Australia, Darwin with the parties granted leave to attend by telephone on that date.
12. That the Application in a Case filed by the mother on 27 January 2021 be otherwise dismissed

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.

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

REASONS FOR JUDGMENT

JUDGE YOUNG:

1. This is a parenting application concerning a six year old boy, X.  The application began as an application in a case by the mother seeking a recovery order. However, as the matter has unfolded today it is more complex than that. It is not, strictly, in my view, an ordinary recovery application.  It is an interim relocation hearing where I am satisfied the mother has made a unilateral relocation.

2. The background is as follows.  The parties apparently separated under one roof in 2019 or mid-2019. In December 2019 the mother left the former matrimonial home in the Adelaide suburb of Suburb D.  She left with X and she took up residence at a place called Suburb E. According to the map I was provided it is about 23 kilometres from Suburb D – I was told approximately a 30 minute journey by car.

3. Apparently, in 2019 X was attending the Suburb D Primary School or preschool – the evidence is a bit unclear about that. In 2020 he was clearly attending primary school at Suburb D Primary School and he was commuting from his mother’s home in Suburb E when he was spending time with her. 

4. It is not in dispute that the child was living with the mother and spending time with the father in a way that accommodated the father’s working roster as a police officer.  That roster – which appears at paragraph 5 of the mother’s affidavit of filed on 18 January – shows that the child was spending time with the father on a three-week roster. The child was spending time with the father for four weekdays in a row, presumably overnight, in week 2 and on the weekend in week 3, the child was spending one night, perhaps two with the father. I understood from the submissions that the roster meant that the child was pending five nights and six days out of 21 with the father.

5. The father asserts in his material that his roster has changed.  Unfortunately, he did not provide me with a copy of the roster or set out the roster in any detail.  As I understood his submissions, his roster is much the same except that he no longer works a nightshift which, under the old roster, saw him working until 11:30pm on 6 nights out of 21.  As I understood him, the father stated that he now finishes work on those days at 6:00pm and he has done that in order to be able to more easily care for the child.

6. The father also made the broad claim in evidence that the child spent time with him on half of the days of the previous year; not overnight, necessarily.  That was not particularised so I am unable to make any particular finding about that. Nevertheless, it is clear in my view that the arrangements, until very recently, have been that the child is in the primary care of the mother. That is, it would appear, for 15 or 16 nights out of 21 and 5 or 6 nights with the father.

7. I am satisfied that the child has primarily resided with the mother and the question of residence has been a settled arrangement since the parties moved into different households in December 2019. 

8. The difficulty is this.  In late last year the mother indicated to the father that she wished to take up employment with, as I understood it, the Employer F, which is at Suburb C.  She said that this would enable her to more conveniently spend time with the child and be available for the child.  There is no real evidence about that, and I do not propose to make any findings about that, because I am satisfied I cannot.  However, it is an accepted position that she has relocated her residence to Suburb C which, it is agreed, is 70 kilometres and about an hour – perhaps slightly more – from Suburb D and Suburb D Primary School – that is an hour each way. 

9. If the mother were to continue to have the child reside with her this year, but have the child attend Suburb D Primary School, that would involve an hour’s journey for the child twice a day. Further, it would involve two hours’ journey twice a day for whoever it was, presumably the mother, that was taking the child from Suburb C to the Suburb D Primary School.

10. The mother says that is not sustainable or practicable.  The father agrees with that. He does not suggest that this is a practicable alternative.  He says that the part of the settled arrangement that he focuses on is the fact that the child has attended Suburb D Primary School in the past, and for the child to continue at Suburb D Primary School the child should live with him.

11. The father does not suggest that the mother’s relocation to Suburb C is anything other than for a genuine reason, or that the motivation is to undermine the relationship between the child and him.  He says that it is in the child’s best interests that the child remain at his present school for the foreseeable future and that this is only practicable if the child lived with him.

12. The competing proposal, on the part of the mother, is that the child live with her and be enrolled at Suburb C Primary School, and spend much the same time with the father as the child is spending at the moment. She says when the father has four days off, which occur during the week, the child will stay overnight with the father. She proposes to travel to Suburb B, which is said to be the halfway point between Suburb C and Suburb D, so that the child can attend school at Suburb C Primary School. 

13. The father says that he doesn’t consider that arrangement practicable. His proposal, as I say, is that the child live with him, particularly, during the term.  That is what is in his interim application. In argument, however, he said that what he was really proposing was that the child spend two weekends out of three with the mother. That proposal was not set out – it was not what is in his interim application. I take it that the interim application has been superseded, to some degree. 

14. Whether or not the mother’s proposal is practicable, I am not entirely sure. The father, as I have said, has not made any proposal about time spending if the child is to live in Suburb C.  I asked him about that specifically, and he said he could not think of any practicable arrangement.  That will have some consequences but the consequences will be, I think, for him to resolve. 

15. The parties, therefore, have two clear and distinct competing proposals. The mother, who I am satisfied is the primary carer of the child, proposes that the child live with her in Suburb C and go to Suburb C Primary School. She proposes the child spend time with the father as per current arrangements, which will involve some significant travel for each of them. I am satisfied this proposal is not obviously impossible but perhaps inconvenient. The father’s proposal is that there be a change in the primary care of the child, the child live with him, the child continue at Suburb D Primary School, and that the child spend two weekends out of three with the mother.

16. I am satisfied that this case is actually an interim relocation case despite Mr Anderson saying that the arrangements will not change substantially through the mother’s relocation. I am satisfied that there is a substantial change in the arrangement. I am not satisfied that the change in arrangement necessarily makes the arrangements unsustainable. They are not, however, as conveniently handled as they have been in the past. As the authorities make clear, it is not necessary for the Court to come up with some third proposal, though, of course, it may do so.

17. In hearing this case, some other allegations have been raised.  The father, yesterday, filed a late affidavit and also a new notice of risk.  In the second notice of risk, he raises allegations about the mother’s mental health and abuse of alcohol.  These allegations were not included in the first notice of risk, and when asked the father did not explain to me why they were raised now and not raised earlier on if they were of substance.  In my view, that detracts very significantly from the cogency of those allegations and, at this stage, I am not satisfied I should give them any real weight.

18. The other allegation the father raised, relatively late, is an allegation that on 17 January 2021 the child displayed what the father described as “sexualised behaviour” while the child was spending time with him.  That behaviour consisted of, apparently, the child spreading his buttocks and saying to the father “this is what girls do” or something to that effect.  The father said he had asked X where he had seen, heard, or learnt that. The effect of what X, apparently, said was that he had seen it on adult YouTube, whatever that might be, whilst in the company of G who I understand is a child of the mother’s partner. I do not know how old G is.

19. The father said that he has raised that with the child welfare authorities.  He telephoned the Child Abuse Report Line. He understood that the child welfare authorities would not take that matter any further.  I asked the father whether he was alleging that the child was at unacceptable risk of harm in the mother’s care, and after some equivocation, in my view, he eventually said that he was satisfied, now that he has raised the issue, the that mother would be protective of the child. If the child was at real risk of harm, or if the father believed the child was at real risk of harm, that would be inconsistent with his proposal that the child spend two weekends out of three with the mother.

20. I am not satisfied that there is any unacceptable risk of harm to this child in the mother’s care.  The mother offered an undertaking that she will ensure that the child is supervised in a way that means the child does not access any inappropriate material on any electronic devices in the home, and I note that undertaking.

21. In all the circumstances, I am satisfied that there are two relevant settled arrangements:  first, that the child primarily lives with the mother, and secondly, that the child attends Suburb D Primary School. 

22. The choice is stark, in my view, and this is reflective in the competing proposals of the parents. Either the child live with the mother in Suburb C and attends Suburb C Primary School or the primary carer of the child is changed so that the child lives with the father and attends Suburb D Primary School. No one is suggesting that a commute is in any sense practicable or sustainable or in the child’s interest

23. In my view, the less disruptive change is likely to be that the child continues to reside with the mother.  It follows, therefore, that the child must attend Suburb C Primary School and that is the order I propose to make.

24. The factors in section 60CC(2), in my view, are not engaged. In respect of (a), the child’s right to a meaningful relationship with both parents, I am not satisfied that any of the proposed changes will undermine the child’s right to a meaningful relationship with both parents, and particularly the father in the circumstances of this case. In respect of (b), I am satisfied there is no issue about risk of harm to the child.

25. In relation to the other matters in section 60CC(3), I have general regard to them. I am not satisfied that there is any particular matter relating to parenting capacity, lifestyle, maturity, or any of those matters that have a particular bearing on this case.  It appears that, up until now, the child has been well cared for by both parents while they lived relatively close to each other.

26. I do not propose to make an order for sole parental responsibility. This engages the inquiry in section 65DAA.  In my view, having regard to the reasonable practicality of the circumstances, particularly how far apart the parents live from each other, equal time is not practical. Substantial and significant time is practicable, and I am satisfied that will be in the child’s best interests, and I propose to make the orders that the mother seeks.

27. If the father still asserts that the orders are not practicable and he cannot comply with that, that’s a matter for him. However, I do not see, at this interim stage of the hearing, that I have much other option in the absence of any concrete proposal from him. 

28. There will be orders in terms of the minute provided by the mother.

29. The child is to be delivered, today, to the mother at the Suburb B Police Station, at 6.30pm South Australian time.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated: 2 March 2021