FLECK & MARONE

[2019] FCCA 3149

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLECK & MARONE [2019] FCCA 3149

Catchwords:
FAMILY LAW – Parenting – interim orders – where father unilaterally relocates with one child – no evidence of agreement by the mother as alleged – best interests of the child – return to settled arrangements until further determination can be made by the Court.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant: MS FLECK

Respondent: MR MARONE

File Number: DNC 478 of 2019

Judgment of: Judge Young

Hearing date: 11 October 2019

Date of Last Submission: 11 October 2019

Delivered at: Darwin

Delivered on: 11 October 2019

REPRESENTATION

Counsel for the Applicant: Mr Barry

Solicitors for the Applicant: Darwin Family Law

Counsel for the Respondent: Mr Maley

Solicitors for the Respondent: Maley Barristers & Solicitors

ORDERS UNTIL FURTHER ORDERS

1. That within 7 days of this order the father shall return to Darwin the child X, born … 2016 (“the child”), to reside in Darwin.

2. That the matter be adjourned to 4 December 2019 at 9.30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 478 of 2019

MS FLECK

Applicant

And

MR MARONE

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 a parenting application concerning two children, X, who is three years and six months old, and Y, who is four years and 10 months old. The background of the matter is as follows. The parents separated in the Northern Territory in January 2018. Until around November or December 2018, the children were spending approximately equal time with each parent pursuant to an informal agreement between the parents. Both parents were employed at that time.  The mother is in private employment in Darwin and the father was employed on the Employer A.

3. About November or December 2018 it is agreed that the mother was experiencing difficulties caring for the children and there are text and other messages in the affidavit material which show that she was feeling a degree of stress and frustration caring for these two young boys, one of whom, Y, appears to have some behavioural difficulties that have not been accurately identified at this stage. There is certainly agreement that he experiences behavioural difficulties and, indeed, so much so that this year Y was excluded from his childcare centre because of, it appears, him hurting or threatening to hurt other children.

4. In November or December 2018 as the mother was having difficulties caring for the two children, it was agreed that the children would be cared for by the father. From November or December 2018, the boys began living with their father and spending time with the mother, pursuant to an informal agreement. The mother says that, generally, that was about nine nights a fortnight with her and five nights a fortnight with the father but it was, according to her, flexible and there was flexibility built in particularly to accommodate the father’s work roster. In June or July 2019 it appears that the arrangement changed and the parents, by agreement, reverted to a fifty-fifty arrangement with the children spending one week with each parent.

5. It appears that through 2019 the parents began discussing a move or at least the father’s move to Town B in southern New South Wales, where he has family. Apparently his work in the Employment A industry in Darwin was affected, I gather because of the downturn in the industry, and he thought that he had needed to relocate to retain constant employment.

6. There was discussion going on between the parties about that. I accept that and the annexures attached to the father’s affidavit make that clear that he had at least expressed a wish to relocate to Town B with the children. That much is clear from a text message from the mother to the father in August, said to be 2019 though the 2019 date does not appear on the text message. The message in part said:

   Fuck this.  I’m done!  Go to Town B. [which I take to be short for “Town B”.] Take the boys.  There’s more hands to help and I will just work more and pay for them. I will kill them myself otherwise. Being the mother is the worst thing that has ever happened to me and I [hate] every fucking minute of it.

7. There were some other texts from an earlier period expressing the mother’s unhappiness and difficulty caring for these boys. While I accept on the basis of that text message and others that the mother may have been having some difficulty, I am not satisfied, as the father asserts, that she had agreed for him to relocate to Town B with both children.  While that text message suggests something of the kind, it can also be read as an expression of frustration and exasperation and indeed stress. I am not satisfied that that message alone indicates that the mother had agreed that the father should relocate with both children. Subsequent events suggest to me that is not the case at all.

8. The shared care arrangement continued until 30 September 2019 when the father relocated with X to Town B. I should have said that, at an earlier point, there had been agreement between the parents that, and this agreement was in August 2019, Y should go to Town C to live with the paternal grandmother. As I’ve said, the background for that was that he was experiencing some reasonably serious behavioural difficulties. They were so serious indeed that he was excluded from his childcare centre and it was probably thought that as the paternal grandmother has some professional qualifications in education and childcare and counselling she may well be able to access appropriate treatment, counselling or intervention for Y. There is, in fact, no evidence that there has been such intervention or treatment for Y while he was living in Town C with the paternal grandmother. The precise difficulties that Y has are unclear to me at the moment. 

9. In any event, by late August it is clear that there were some difficulties between these parents because on 20 August 2019 the father says that he blocked the mother’s phone so that she could not call him or text him. I infer from that that there was some serious disagreement between these parties. Precisely what the subject matter of the disagreement was I don’t know; it may be that the subject matter of the disagreement was the father’s wish to relocate to Town B with both boys. He says that he blocked her because of abuse. In any event, I consider that the blocking of the mother’s telephone by the father on 20 August 2019 is not suggestive of a cooperative arrangement and, indeed, is suggestive of some significant disagreement between these parents.

10. The mother evidently suspected that the father was intending to unilaterally relocate to Town B because in early September she attended on her solicitor, Mr Barry. Mr Barry wrote a letter, sent by email, to the father on 16 September 2019 saying that the mother did not consent to any relocation by the father with X, in particular to Town C.  The father did not reply to that email.

11. On 30 September the father, who had apparently been making preparations for some weeks or months to move, relocated himself and X to Town B. On that date he sent a text to the mother, presumably unblocking her phone for the purpose, which read as follows:

    Hi, Ms Fleck.  I wanted to let you know I have X. We are driving down south. I didn’t want things to go this way. But you know that these boys need to be together and how much they love each other. I am wanting what is best for our boys. Please understand what is best for them.

12. I am satisfied that that text message indicates that the father was well aware that the mother did not agree to the relocation and I am also satisfied that the probable reason that the father did not reply to Mr Barry’s email of 16 September is that at that date he also knew that the mother was not in agreement with his plan to relocate. In my view, his failure to respond to that letter from Mr Barry, if what he said was true that he believed there was agreement to relocate, is inconsistent with that position. I reject the submission or claim by the father that there was agreement for him to relocate to Town B with X and certainly that there was no agreement at that time he, in fact, relocated in September.

13. The other submission made by the father is that the mother constitutes a risk of harm to the children, and in particular X, should there be an order for his return to Darwin. He pointed again to the text messages that I have referred to. I am not satisfied that there is any unacceptable risk of harm should X be returned to the mother. The fact is that in June or July the father agreed to return to an equal shared care arrangement with the children and, if he genuinely thought that the mother was a risk to these children, that would be inconsistent with his agreement to return to an equal shared care arrangement. I am not satisfied that he genuinely believed that the mother was any risk to the children.

14. The other submission that was made by Mr Maley, as counsel for the father, was that an order for the return of X would result in a separation of siblings, that is, between Y and X. That, of course, is true, though it should be noted that both children have an older sibling, D, who is 15 years old, who lives with the mother. She is the child of a previous relationship, I understand.

15. I am satisfied that, at the time the father relocated with X, he knew that the mother was not consenting and had not consented for at least some weeks prior to his relocation although I can make no particular finding about whether there was an agreement at an earlier point. However, the blocking of the mother’s phone on 20 August appears to me to be probably inconsistent with any agreement about that subject, even as early as that.

16. I am not satisfied that there is an unacceptable risk of harm to X in his mother’s care. I am also satisfied that there were settled arrangements for X in particular before the father relocated with him and the case law in this jurisdiction generally says that in the case of a situation such as this, namely, unilateral relocation, a returned to settled arrangements will be in the best interests of a child pending a court being able to more fully determine what the issues in a particular case are. In my view, that is the case here.

17. I also take into account the fact that at the present Y and X are together but I think I have to approach that somewhat cautiously, as the parents themselves decided to separate these siblings in August because of Y’s behavioural difficulties, including, apparently, a risk of harm to other children. Considering the parents agreed to separate the siblings themselves, the separation of siblings issue has less weight in his particular case at this time.

18. In my view it is appropriate having regard to those matters and having regard to the matters in subsection 60CC(2) and (3) that there ought to be a return, so far as possible, to the previous arrangements.

19. Of course, the father is now based in Town B, so the fifty-fifty arrangement cannot take place while both parents live in different states, but I am satisfied that until the court can make a more detailed examination of the issues in this case that X ought to be ordered to be returned to Darwin to live with his mother.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:  4 November 2019