ELLERSON & GAFFNEY

[2020] FCCA 831

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELLERSON & GAFFNEY [2020] FCCA 831

Catchwords:
FAMILY LAW – Application for Interim Relocation – where the Mother relocated from Region B to Adelaide – where the Court has made an Order for the Mother to return to the Region B – where current restrictions prevent the Mother from returning to the Region B – whether the Court should make an order that would override the current restrictions even of it had the power to do so.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR ELLERSON

Respondent: MS GAFFNEY

File Number: BRC 1265 of 2020

Judgment of: Judge Vasta

Hearing date: 1 April 2020

Date of Last Submission: 1 April 2020

Delivered at: Brisbane

Delivered on: 1 April 2020

REPRESENTATION

Counsel for the Applicant: Mr R.J. Gordon

Solicitors for the Applicant: Hey Family Law

Counsel for the Respondent: Mr J. Lewis

Solicitors for the Respondent: Women’s Legal Service

ORDERS

1. That the children X born in 2017 and Y born in 2019 (“the children”) live with the mother on the Region B.

2. That the children spend time with the father from 9.00am to 5.00pm Saturday and Sunday and alternating each weekend thereafter.

3. That the father pay to the mother:

   (a)the sum of $350.00 per week for rent assistance; and

   (b)the sum of $1,000 for associated relocation costs.

4. That Orders 1 to 3 above are suspended until the present restrictions on travel and social contact, pursuant to the current Covid-19 status, is lifted by the Federal and State Governments.

5. That until the restrictions are lifted pursuant to Order 4 herein:

   (a)the children live with the mother in Adelaide; and

   (b)the children communicate with the father via telephone, skype or FaceTime no less than five (5) times a week on Monday, Wednesday, Friday, Saturday and Sunday or on such other days as agreed between the parents.

6. That the children and the mother relocate to the Region B no later than seven (7) days from the date the restrictions, pursuant to Order 4 herein, are lifted.

7. That this matter be adjourned for mention/directions only at 9.30am on 9 July 2020 in the Federal Circuit Court of Australia at Brisbane.

IT IS NOTED:

(A)That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1265 of 2020

MR ELLERSON

Applicant

And

MR GAFFNEY

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The children, X, who was born in 2017, who is approximately two years and nine months, and Y, who was born in 2019, who is almost 13 months, live with the mother, Ms Gaffney.  They had lived with the mother and the father until the parties separated, it would seem, about 14 months ago.

2. Following that separation, there were, it would seem, informal arrangements for the children to spend time with the father.  In early February 2020, the mother relocated to Adelaide.  She had not discussed relocation with the father.  She has claimed that there is an underlying atmosphere of domestic violence that exists between her and the father.  She says that she felt financially controlled by the father.

3. She said that she was concerned about the lack of any rigor in the arrangements they had between themselves for the children to spend time with each other, and that the father seemed to be able to change those arrangements when his circumstances demanded it.

4. Her final concern was that she felt isolated because while she had some friends, she felt as though she had no support network.  A combination of all four of those factors militated her decision, it would seem on the material before me, to move to Adelaide. 

5. It does seem to me that the mother identified the best interests of the children with her own best interests.  I have no doubt that the best interests of the mother were to move to Adelaide.  I am not so sure that that was in the best interests of the children, given that they had only known the Region B area in their lives, and the people that they had come into contact were all based in the Region B area, especially the father and the paternal grandparents. 

6. The father sought the Court order that the children return to Queensland.  A family report was compiled by Mr C and Mr C went through all of the factors.  It is Mr C’s view that, on an interim basis, the children should be returned to Queensland.  He says this because the length of time away from the father will slowly erode the relationship that he has with the children. 

7. It seems to me that that is common sense that the parents should either live on the Region B or live in Adelaide for the parents to have the best relationship that they can with the children.  Of course, the children are extremely young and unless there are some really exceptional circumstances, I would not be entertaining any application for overnight time between a child and a parent who is not the primary caregiver until the child has at least reached the age of three. 

8. Mr C in his report indicates that if the interim arrangement of the mother living in Queensland were to occur, that it would be then for the Court to be able to properly assess those things that the mother has said.  It may be at the end of it all that it is in the best interests of the children to live in Adelaide and arrangements can be made the, but that can only occur after a Court has had a full and thorough consideration of all the evidence and has the sort of assistance that can happen when there is cross-examination of the parties, documents and other material that usually is obtained by subpoena for the Court to be able to make that decision. 

9. It seems to me that the family violence that has been described by the mother is a form of situational family violence, though I am not in any way discounting what it is that she says about feeling financially dependent upon the father. 

10. In coming back to Queensland, the mother would be even more financially dependent upon the father.  The father has offered that he would be paying her rent of up to $350 per week for the time between when the mother returns and when the trial is able to be accommodated. 

11. If the children are to be returned, then the Court would put in place a regime for the time that the father spends with the children, and it would mean that three of the four main issues that the mother is worried about can actually be answered in the short-term. 

12. If the mother were to return, the fourth factor of isolation would not be answered.  In fact, it would be well and truly present, but in the interim it would seem that the Court would be able to truly assess what the impact of the isolation that the mother says she has truly is. 

13. It would seem to me then that the proper course would be to order that the children return to Queensland. This should occur because the mother has, in effect, said that wherever the children are, she will be. The mother will be able to find a suitable place in which to live and, upon her finding that residence, the father will give the mother the sum of $350 per week, on top of any other child support that he is paying so that she can afford that rental. The father will spend each alternate Saturday and Sunday between the hours of 9 am to 5 pm with the children. I will then try to have a trial date as soon as practicable, but ordering a further family report which would be completed, I would hope, about one month before the trial. 

14. The reticence that I have with this is the current restrictions that are presently in force in regards to travel and or even leaving houses.  This is a matter where the borders to both South Australia and Queensland are closed, and they are closed for a good reason.  There are social distancing rules in place so that there is little to no physical contact between persons who do not live in the same household.  That means that the chances of the virus spreading as quickly as it has in other places is diminished. 

15. It has been put to me that, because these I am about to make Court orders, I can, as it were, allow these children to be exposed in a way that other children within the community would not be exposed.  That is, that I can order that the children are to come into Queensland and that the 14-day quarantine period now will no longer magically apply to them because I have made the order, and that notwithstanding the social distancing rules, that the father will be able to have normal contact with the children.

16. I have some real problems with that proposition because it means that somehow these children can be treated differently to other members of society simply because it is that I have the power to “order” what it is that the father wants to do to be above any other concerns of the general community. 

17. It may be that I do have that power, but, if I do have the power, then that power must be exercised responsibly.  It seems to me that if these restrictions were not in place, the orders that I have made should occur immediately, but as far as I am concerned, the current guidelines do not allow me to, in conscience, make the sort of order that I feel is warranted in what would be the usual best interests of the children. 

18. The best interests of the children, to my mind, is to comply with the current restrictions; to stay home and to have as little contact with anyone who is not a member of their household as possible. 

19. I realise that this is an extremely controversial decision and it may be best that this ruling is something that is tested in the Appeal Court as soon as possible so that there can be some guidance by the Appeal Court, given, as I say, these are short form reasons and, it would seem to me, the real issue, if the matter goes before the Appeal Court, is whether the orders, that I would have made, should actually take effect, notwithstanding the guidelines or, I should say, the spirit of the guidelines of both State and Federal Government directions. Or whether in a matter such as this, that the orders of the Court should create an exception to those restrictions and Government guidelines. 

20. So the order at this stage is that the children stay with their mother in Adelaide and for them to have regular telephone or, more importantly, FaceTime or other audio visual contact with the father until the current restrictions are lifted.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:   17 April 2020