EGGERS & TAINE
[2015] FCCA 242
•3 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EGGERS & TAINE | [2015] FCCA 242 |
| Catchwords: FAMILY LAW – Injunction – where father seeks injunction to restrain the mother from removing the parties’ children from outside the [S] Shire of Sydney – relocation – unilateral relocation – where mother relocated the residence of the children whilst father was commencing proceedings to restrain her from removing the children. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B |
| Cases cited: Adamson & Adamson [2013] FamCAFC 157 Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MR EGGERS |
| Respondent: | MS TAINE |
| File Number: | WOC 805 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 2 February 2015 |
| Date of Last Submission: | 2 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 3 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Murphy |
| Solicitors for the Applicant: | Kells The Lawyers |
| Solicitor for the Respondent: | Ms Sosner |
| Solicitors for the Respondent: | Brander Smith McKnight Lawyers |
ORDERS
UNTIL FURTHER ORDER
The Respondent mother is restrained from removing the children, [X] born [in] 2009 and [Y] born [in] 2010 from outside the area of the [S] Shire of Sydney.
The Respondent mother must return the children, [X] and [Y] to reside at an address within the said [S] Shire within fourteen (14) days.
The Respondent mother must do all acts and things necessary to re-enrol the child [X] at [H] School within fourteen (14) days.
The Respondent mother must do all acts and things necessarily to re-enrol the child [Y] at [L] Kindergarten at [omitted], New South Wales.
All previous parenting Orders are discharged.
The Applicant father and the Respondent mother are to have equal shared parental responsibility for the said children, [X] and [Y].
The children [X] and [Y] are to live with the mother.
The children are to spend time with the father as follows:
(a)each alternate weekend from immediately after school or preschool on Friday until 5:00 pm on Sunday;
(b)for the first half of each of the Autumn, Winter and Spring school holiday periods, commencing at 9:00 am on the first Saturday after the last day of the school term and concluding at 5:00 pm on the following Saturday;
(c)from 9:00 am on Christmas Eve until 12 noon on Christmas Day 2015;
(d)from 9:00 am on 2 January until 5:00 pm on 16 January 2016;
(e)from 9:00 am until 5:00 pm on the father’s birthday if the birthday falls on a day when the children do not have to attend school or from immediately after school if the birthday falls on a school day;
(f)from 9:00 am until 5:00 pm on Father’s Day;
(g)on each of the children’s birthdays:
(i)from immediately after school or preschool until 8:00 pm if the birthday falls on a school or preschool day; and
(ii)from 11:00 am until 4:00 pm if the birthday falls on a day when the children are not required to attend school or preschool.
Notwithstanding the provisions of the immediately preceding orders, the father’s time with the children will be suspended on:
(a)Mother’s Day; and
(b)the mother’s birthday.
For the purpose of changeover where the children go from the care of one party to the care of the other, the father will collect the children from school or preschool if the father’s time with the children commences on a school day or a preschool day, and the mother or her nominee, being a responsible adult known to the father, will collect the children from the father’s residence at the conclusion of the time.
In cases where the children’s time with the father does not commence on a school or pre-school day, the father or his nominee, being a responsible adult known to the mother, will collect the children from the mother’s residence at the commencement of the time, and the mother or her nominee will collect the children from the father’s residence at the conclusion of the time.
The children will communicate to the father by telephone each Monday and Thursday afternoon between the hours of 4:00 pm and 4:30 pm by means of the mother calling the father’s mobile telephone number.
The parties are restrained by injunction from:
(a)abusing, criticising or denigrating each other in the presence or hearing of the children or permitting any third person to do so; and
(b)making any abusive, critical or derogatory comments about the other party by telephone, text or on Facebook, Twitter or any other form of social media.
As provided by section 62G of the Family Law Act 1975, the parties are to attend upon a Family Consultant at a time, date and place specified by the Director of Child Dispute Services at the Sydney Registry of the Court for the purpose of preparation of a family report on matters relevant to the care, welfare and development of the children, [X] and [Y].
IT IS NOTED that publication of this judgment under the pseudonym Eggers & Taine is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT SYDNEY |
WOC 805 of 2014
| MR EGGERS |
Applicant
And
| MS TAINE |
Respondent
REASONS FOR JUDGMENT
This is a matter where I heard an application for injunctive orders and some interim parenting orders yesterday. The Applicant is the father of two children, [X], who was born on [omitted] 2009 and is almost six years of age and [Y], who was born on [omitted] 2010 and is four years of age.
The father seeks injunctive orders requiring the mother to be restrained from relocating the children out of the [S] Shire area and requiring her to return the children’s residence to that area and, indeed, to within 15 kilometres of the [H] School. He also seeks orders whereby the children would continue to live with their mother but he would spend time with them on weekends and during the school holidays in a somewhat uncontroversial arrangement.
The mother opposes those orders. She wishes to remain living where she is and she also seeks relatively uncontroversial parenting orders relating to the children living with her and spending time with their father.
Background
A brief background is that the parties commenced living together in May 2008. Their elder child, [X], was born on [omitted] 2009. Their younger child, [Y], was born on [omitted] 2010. They separated, apparently under the one roof, on 16 March 2014 and the father physically moved out of the home on 2 April. On 18 April the mother moved out of the home and went with the children and stayed with her maternal grandmother. The father moved back into the home. The mother moved in May.
There was a series of communications by SMS text messages between the parties, much of it in the most vitriolic of terms relating to their new arrangements. Neither party wasted much time in forming a new relationship. Indeed as early as April of last year the father placed on his Facebook page a notification of his interest in a lady [Ms D]. He has maintained that relationship, although, on the evidence before me, they do not live together. However, he has indicated in SMS text messages an intention at some stage of going on holidays with the children and his new female friend. This has not been well received by the mother. She has described the father’s new friend in the most derogatory of terms.
The mother indicated early on that she intended to move out of the [S] Shire area and some communication took place with the parties each seeing solicitors. The father indicated his opposition to the mother moving the children’s home out of the area. This seems to have occurred from relatively early in May. By June the father had already instructed solicitors to write to the mother to express his opposition to her moving out of the [S] Shire and to the Northern Beaches area of Sydney, a distance estimated by the parties at either 59 kilometres or 63 kilometres from where the father was living. The distance itself is not so great but the fact that the city of Sydney is in the middle of that distance has created great difficulty.
The mother was certainly aware of the father’s opposition to her proposed move and in her various messages to the father she sent a message which is annexed to the father’s affidavit of 16 September 2014, which message appears to have been sent on 26 June in which the mother said:
You have two choices. You either let us go without any hassle, everyone including the children, or your spend the next few years in court spending a fortune because it’s not going to cost me a cent and you will be dragging the kids and everyone else through hell. Your choice.
The father’s response was:
I choose court. I believe that strongly on this my kids are worth it.
The father indeed commenced proceedings by means of an application and supporting documents filed at the Wollongong Registry of the Court on 17 September, in which he sought parenting orders and injunctive orders to restrain the mother from moving.
By that stage, she had already moved. It appears that she had taken up residence at [omitted], on the northern beaches, and moved in with a man by the name of [Mr C], and she and the children were living with him. She sets this out in her affidavit, and describes that her relationship with this man is a very supportive relationship for her and the children. I might comment that neither the father’s new friend, nor the mother’s new friend are yet on affidavit. The only information about these people comes from the affidavits of the parties themselves.
The proceedings were transferred, on the mother’s application, from Wollongong Registry of the Court to this Registry, and on 16 December the parties entered into certain interim consent orders relating to the children living with the mother, and spending time with the father. It is clear that those orders were intended by the parties merely to tide them over until the father’s interim application could be dealt with in some detail.
The parties were directed to attend a Child Dispute Conference with a Family Consultant, which they did on 16 January. It appears from the Child Dispute Conference memorandum that the parties had agreed to equal shared parental responsibility but the Family Consultant recorded that the mother said that until she receives further legal advice, she would be unable to enter into any further discussion about arrangements with the father.
The Application of the father was listed for hearing yesterday. The father has filed an Amended Application on 29 January.
Conclusions
The fact is, that what the Court has here is a unilateral relocation. The mother elected to move out of the area with the children, which involved removing the children from school and preschool, at a time when she was well aware that the father not only opposed that application, but had the intention of commencing legal proceedings in order to restrain her from doing so. True, it is, there were no parenting orders in existence, but I am not of the view that that is particularly relevant.
It is a situation that occurs in this Court quite frequently, and indeed, a very similar matter came before this Court a year or two ago, in a matter called Adamson & Adamson[1], where a mother, in the knowledge that the father was commencing proceedings, or had commenced proceedings to restrain her from moving out of the Sydney metropolitan area, nevertheless went ahead to – to move, and when orders were made that she should relocate back to the Sydney metropolitan area, then appealed to the Full Court of the Family Court. Her appeal was unsuccessful.
[1] [2013] FamCAFC 157
The relevant law
The parties here are not just seeking and opposing injunctive orders under section 68B of the Family Law Act 1975 (Cth), they are seeking interim parenting orders, which means, of course, the legislative pathway so well described in Goode &Goode[2] needs to be followed.
[2] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
The Court needs to consider the matters set out in:
a)Section 60B, which sets out the objects and the principles of Part VII of the Act;
b)Section 60CA, which provides that the best interests of the children must be the paramount consideration;
c)Section 60CC which sets out the way that the Court determines what are in the children’s best interests;
d)Section 61DA which deals with the presumption of equal shared parental responsibility; and
e)Section 65DAA, which deals with the circumstances where there is an order providing for equal shared parental responsibility, that the Court must consider whether it would be in the best interests of the children and reasonably practicable for them to spend equal time with each parent or, failing that, whether it would be in their best interest and reasonably practicable for them to spend substantial and significant time with each parent.
I have considered these matters. I have considered all of the factors in section 60CC of the Act insofar as they are relevant.
Equal shared parental responsibility
Each parent seeks an order for equal shared parental responsibility and there are no issues of violence or abuse that would suggest that the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility would not apply.
Section 65DAA of the Family Law Act
In my view it is not in the children’s best interests or reasonably practicable for them to spend equal time with each parent. The interim orders proposed will go some towards substantial and significant time with each parent.
Orders that are in the best interests of the children
It is certainly clear that the mother’s actions, not just in unilaterally moving away, but in setting up another relationship, a live-in relationship, for herself and the children, has been precipitate to say the least. It would be very difficult for the Court to make any determination about final orders because the parties have each formed significant relationships with other people, and the Court knows virtually nothing about them.
It does seem as if the mother’s actions in removing herself show very little regard or any desire for stability for the children. True it is there has been a separation from the children’s father, but removing the children entirely from the area over the opposition of the father and then moving them into the household of a person with whom she is now living would be highly destabilising. It has involved the children being removed from their school and preschool accordingly.
In my view the best interests of the children require that the Court acts to bring about some stability in the children’s lives. It may be on a final hearing after all of the evidence is considered and perhaps with the benefit of a family report, that the mother’s wish to live on the northern beaches with her friend, [Mr C], may be seen to be in the best interests of the children; however, if the Court does not act and a status quo is established, that is not an appropriate way to make arrangements for the best interests of the children.
The father has clearly expressed his opposition to the mother’s, what appears to me, precipitate, move and in my view the matter needs to be resolved in a somewhat calmer and more considered view because the best interests of the children are the paramount consideration.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 6 February 2015
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