FLETCHER & CABRAL

[2017] FCCA 2036

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLETCHER & CABRAL [2017] FCCA 2036

Catchwords:
FAMILY LAW – Parenting – mother permitted to relocate with child to Adelaide.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60C, 65DAA

Cases:

Morgan & Miles (2007) 312 FLR 114

Browne & Keith (2015) 55 Fam LR 208

Applicant: MR FLETCHER

Respondent: MS CABRAL

File Number: ADC 3120 of 2010

Judgment of: Judge Young

Hearing date: 2 August 2017

Date of Last Submission: 2 August 2017

Delivered at: Alice Springs

Delivered on: 2 August 2017

REPRESENTATION

Counsel for the Applicant: Ms Lindsay

Solicitors for the Applicant: Minney & Associates

Counsel for the Respondent: Ms Tran

Solicitors for the Respondent: Hume Taylor & Co Lawyers

ORDERS THAT UNTIL FURTHER ORDER:

1. That the mother be permitted to relocate to Adelaide with the child [X] born on 2009.

2. The child spend the entirety of the school holidays with the father.

3. That the mother arrange and pay for a return flight for the child to (omitted) on one (1) occasion per month and on Saturday, 30 September 2017 returning on 15 October 2017 for the purpose of holidays AND NOTING THAT there will be one (1) visit mid-September 2017 and one (1) visit at the beginning of November 2017.

4. That the father be at liberty to spend two (2) weekends per month with the child in Adelaide upon providing reasonable notice to the mother.

5. That the father be at liberty to communicate with the child by telephone on one (1) occasion per week at times to be agreed between the parties.

6. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child of the relationship [X] born on 12 March 2009 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services 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 31 October 2017.

7. That the family report to deal with the following matters:

   (a)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;

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

   (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

8. That 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 Case Coordinator Child Dispute Services.

9. That the parties are to telephone the Case Coordinator Children Dispute Services on 08 8219 1589 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

10. That 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.

11. That 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 be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only 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.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to order 11 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

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

2. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

3. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any  material produced pursuant to subpoena  and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served on or before 2 October 2017 as follows:

   (a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

   (b)annexing such material as is considered relevant, with

   (c)the affidavit to be paginated, indexed and exhibits tagged.

4. That the matter is listed for trial on 23 and 24 November 2017 at 10.00am (allowing two days).

5. That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness complying with rule 15.28 of the Federal Circuit Court Rules 2001 intended to be relied upon at trial no later than 28 days prior to the trial.

6. That on or before 28 days prior to trial the applicant pay the setting down fee and the respondent pay such further daily hearing fee as required pursuant to the Family Law (Fees) Regulation 2012.

7. That each party exchange and email to my Associate no later than 2 days prior to the hearing, a case outline setting out:

   (a)a list of the material relied upon;

   (b)a brief chronology listing significant events;

   (c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (section 60CC factors);

   (d)a list of other contentions relevant to the decision;

   (e)whether the presumption of equal shared parental responsibility applies (section 61DA), and if not the contentions relied upon;

   (f)a list of the considerations relevant to considerations of equal and substantial parenting time (section 65DAA);

   (g)a list of other relevant considerations (including the relevant section number) (for example, sections 60CG, 61F, 65DAB and/or 65DAC); and

   (h)the actual orders sought.

8. That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court.

9. That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 14 days before the commencement of the hearing.

10. That in the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Young delivered this day will for all publication and reporting purposes be referred to as Fletcher & Cabral.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALICE SPRINGS

ADC 3120 of 2010

MR FLETCHER

Applicant

And

MS CABRAL

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgement 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.  

   [NOT TRANSCRIBED]

2. ….. the parents have changed those arrangements by agreement since then, but it appears to be reasonably common ground that, under those orders, the regime has been that the child spends generally Friday and Saturday nights with the father on each weekend and school holidays.  The mother calculated that the child spent 122 nights in the past 12 months with the father.  That is a third of the time.  It appears that the child also spends time with the father on occasions after school, soccer training in particular.  

3. The mother also has another child, [Y], who is about two, by a Mr P, who is currently serving a period of imprisonment for trafficking in methamphetamines.  He is due to be released from prison in September.  The mother has been employed by (employer omitted) in (omitted) for some time.  The (employer omitted) company was, it appears, about to cease operations some time earlier this year.  As it has turned out, as I understand, (employer omitted) has been purchased by some other company and it may be that the (employer omitted) business will continue.

4. However, the mother says in her affidavit material that she became very anxious about her continued employment – she was employed full time by (employer omitted) in (omitted) – and so much so that she was seeking counselling through an employee assistance scheme. She has annexed a letter from her counsellor to an affidavit and I accept that she was very anxious about her employment.

5. In June of this year she wrote to the father, or, at least, her solicitors wrote to the father, saying that she proposed to relocate to Adelaide in July with a view to obtaining permanent employment in Adelaide.  She has, in fact, obtained permanent employment with (employer omitted) in Adelaide. She is an administration officer with (employer omitted), apparently having some responsibility for contract administration and procurement.

6. When the matter came on before me on 20 July it was on the father’s application for a recovery order because the mother, notwithstanding the father’s refusal to agree to the mother’s relocation to Adelaide, in fact relocated unilaterally, at short notice, to Adelaide in July.  She took steps during the school holidays, if I recall correctly, to enrol [X] at a local school.

7. When the matter first came on before me I had very significant doubts about whether it was in the best interests of the child for such a unilateral relocation to take place without proper consideration of all of the circumstances. I decided it was in the best interests of the child that at least an aspect of the status quo ante, that is, her residence in (omitted) and attendance at her school, should continue.

8. One of the issues that was raised by the mother in that hearing was a second source of anxiety for the mother, that is, her fear of her former partner, Mr P, who was serving a period of imprisonment.  He had been imprisoned in December 2015, if I recall correctly.  She said that there was a history of family violence and threats to her and she had obtained domestic violence restraining orders against Mr P while he was in prison.  

9. She also said that she was concerned because Mr P, on one occasion, had shaken or grabbed [X] while they were living together.  She said in her affidavit, and I quote, “it was not hard”.  In the father’s affidavit in support of his recovery order he also addresses considerable space to Mr P, and it is clear, I think, that both parties have great anxieties about Mr P.  He lives in (omitted) and it appears that on his release there is a real chance that he may return to live in (omitted), not far from the residence of the father and not far from the former residence of the mother.

10. Both parties have described Mr P, in colloquial terms as a nasty piece of work: as violent, threatening and a drug user.  That appears to be common ground, at least, between the parties.  The mother sought counselling in relation to her fears about Mr P last year as well, and there is a letter from a counsellor annexed to her most recent affidavit dated December 2016 setting out her anxiety about Mr P.  There is a reference there to her visiting the prison to see Mr P, with the child [Y], who is Mr P’s child, and feeling overwhelming anxiety about being present with him.

11. I think that description in the counsellor’s report which was produced in December 2016 that is, before these present proceedings were contemplated, is likely to be a reasonably genuine assessment of the mother’s feelings.  So there are two factors at play, I am satisfied, in the mother’s decision to unilaterally relocate to Adelaide, which is, as I understand it, some five hours by road from Adelaide.  That is, first of all, her anxiety about her employment in the face of the impending closure of her employer, (employer omitted) and, secondly, her anxiety about the impending release from prison of P in September of this year.

12. The counsel for the father, Ms Lindsay, submitted accurately that the authorities of Morgan & Miles – and she referred to Brown & Keith as well, which, as I do not have access to here in Alice Springs, but I accept her general proposition that unilateral relocation ought generally not be countenanced by a court unless, she said, there was an emergency.  Ms Tran, for the mother, seemed to, in substance, agree with that submission.

13. Of course, the overriding consideration in all cases is the best interests of the child, having regard to the matters in section 60B, 60CC and following in particular. Ordinarily unilateral relocation ought not be permitted by a parent because a court ought to be given the opportunity, in a contested situation, to consider all of the factors that need to be assessed, including the desirability of a child having a meaningful relationship with a parent, the practicability of time, the issue of the presumptions of equal time arising in section 65DAA, or significant and substantial time, and so on, and it is not possible usually to do that adequately on an interim hearing such as this.

14. I am satisfied that there is no emergency that justified the mother’s unilateral relocation and it appears to me that she ought to have applied to the Court.  It was probably appropriate that she seek that the matter be dealt with as soon as possible but that may well be a counsel of perfection.

15. However, I am satisfied that there were circumstances of urgency behind her move, particularly her concern about her employment, and it may be that she was justified in thinking that there was no certainty about her continued employment in (omitted). If she was offered a job with (employer omitted), which I accept, as she says, is a good job with a very large company with prospect of advancement it was highly desirable, from her point of view, that she accept that job.

16. The fact remains that that has necessarily meant a very significant disturbance in the arrangements for this child.  The other factors that need to be taken into account is that it has been agreed by these parties since 2012 that the child live primarily with the mother, at least for two-thirds of the time, and the child has been living with her mother and, for the past couple of years, with a half-brother, [Y].  The father has repartnered and there are, as I understand it, stepsiblings there as well.

17. In all of the circumstances, I am satisfied that, even though a relocating parent does not have to show a genuine reason for relocation, that there has been a genuine reason behind the mother’s decision to relocate, that is, her employment issues.  I accept that she is highly anxious about the release of Mr P from prison or the imminent release, and the reasons for anxiety appear to be accepted by the father, who repeats much the same reasons and also expresses anxiety about Mr P’s release.

18. However, that is, in my view, not the decisive matter, and I am not sure that I accept that that in itself would justify any relocation.  I think it probably would not.  As I say, the child has lived primarily with the mother, at least for two-thirds of the time, for a significant period.  There is nothing in the material before me that would suggest that there would be an order at trial that the child’s residence be transferred to the father. I do not see that that is particularly on the cards.  It may be after a trial that that would be an outcome.  It is certainly a possibility but all I am saying is I see no particular evidence before me that that is a probable outcome. 

19. In those circumstances, given that I have found and that there are genuine reasons which are pressing for the mother’s relocation and that it is unlikely that I would make an order at trial changing the child’s residence, I am satisfied that the mother ought to be permitted to relocate with [X] on an interim basis to Adelaide.

20. The matter that will have to be considered is the time spending arrangements.  The mother has suggested that the father’s time would be maximised if [X] spent all of the school holidays with him.  She has proposed that [X] spend every alternate weekend with her father.  That seems to me to be likely to be a very onerous arrangement if there is travel by road – five hours – on each alternate weekend.  I am not satisfied that that is likely to be sustainable for an eight year old child.  However, the mother has offered to pay for [X]’s air travel once a month to (omitted) and return.   

21. I certainly propose to make an order that she pay the airfares for [X] to visit (omitted) at least once a month. 

22. I will hear from the parties about any other time arrangements but the orders I propose to make are for the preparation of a family report, which will be released at the end of October, I understand. 

23. I also propose to adjourn the matter for trial, as I think some expedition is merited. 

24. I propose to adjourn this for a trial on 23 and 24 November before me in Adelaide.  I thought of making an order for the appointment of an independent children’s lawyer but I will hear the parties about that.  But I am not satisfied that that is merited at this stage.

25. The orders will be that until further order, the mother is permitted to relocate to Adelaide with the child.

26. The child will spend the entirety of the school holidays with the father, and there is at least one holiday, I think, of two weeks before November.

27. And I am going to make an order that the mother is to arrange and pay for a return flight for the child to (omitted) on one occasion a month.

    [RECORDED: NOT TRANSCRIBED]

28. There will be one visit in mid-September, Ms Tran, then there will be the holidays.  And then there will be one visit at the beginning of November.  So that is two flights between the holidays, and two weekend flights between now and trial.  

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 28 August 2017