Forbes and Perry
[2012] FMCAfam 39
•18 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FORBES & PERRY | [2012] FMCAfam 39 |
| FAMILY LAW – Children – interim parenting orders – relocation – unilateral decision to relocate – best interests of the child – equal shared parental responsibility – substantial and significant time. |
| Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA, 65DAC |
| Forbes & Perry [2011] FMCAfam 194 Mallahan & Mallahan [2010] FamCA 631 Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343 Prewett & Mann [2008] FMCAfam 1523 Rogers & Lenard [2010] FMCAfam 764 Taylor & Barker [2007] FamCA 1246; (2007) FLC 93-345 Taylor & Barker [2007] FMCAfam 706 |
| Applicant: | MR FORBES |
| Respondent: | MS PERRY |
| File Number: | SYC 479 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 January 2012 |
| Date of Last Submission: | 13 January 2012 |
| Delivered at: | Sydney |
| Delivered on: | 18 January 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Jamieson |
| Solicitors for the Applicant: | Gibson Howlin Lawyers |
| Solicitor for the Respondent: | Mr Daoud |
| Solicitors for the Respondent: | TW Legal |
ORDERS
UNTIL FURTHER ORDER
The Father and Mother are to have equal shared parental responsibility for the child [X] born [in] 2004.
The Respondent Mother is restrained from removing the residence of the child [X] a distance of more than twenty-five (25) kilometres from [E] School.
The Applicant Father and the Respondent Mother are to do all such things and complete all such documents to ensure that the child [X] commences to attend [E] School on the first day of Term 1 2012.
The Respondent Mother is restrained from enrolling the child [X] at the [W] School or any other school than [E] School without the consent of the Applicant Father or order of the Court.
The Respondent Mother is to do all things necessary to ensure that the child [X] returns to live at an address within twenty-five kilometres of [E] School by 28 January 2012.
IT IS NOTED that publication of this judgment under the pseudonym Forbes & Perry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 479 of 2010
| MR FORBES |
Applicant
And
| MS PERRY |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father for interim orders restraining the Mother of the parties’ son from relocating the child’s residence from the South-Western suburbs of Sydney to [W], on the New South Wales Central Coast.
The Mother has in fact moved with her partner and the child. She opposes the orders sought and submits that it will have no real effect on the Father’s time with his son, as she will do the extra travelling required to ensure that the Father spends time with the child in accordance with the current orders, which were made by consent on 1st July 2011.
Background
The parties formed a relationship and commenced living together in 2003. There is one child of the relationship, [X], who was born [in] 2004.
The parties separated in September 2005. The child [X] (known as “[X]”) remained living with the Mother.
The parties have each formed new relationships.
The parties have been involved in litigation about their child since early in 2010. They entered into interim consent orders on 2nd August 2010 providing that the child would live with the Mother and spend time with the Father.
The Father commenced contravention proceedings in October and November 2010 claiming that the Mother had contravened the orders on three occasions in September and on one occasion on 15th November 2010.
On 15th February 2011 Walker FM found that the Mother had contravened the orders and ordered that the Father should have compensatory time with the child (Forbes & Perry[1]).
[1] [2011] FMCAfam 194
A Family Report was prepared and released to the parties on 21st June 2011.
On 1st July 2011 the parties entered into final consent orders. Those orders provided that:
a)The child should live with the Mother;
b)The parties should have equal shared parental responsibility for him; and
c)The child would spend time with the Father:
i)on alternate weekends;
ii)each Wednesday from after school until the commencement of school the next day;
iii)alternate Christmases;
iv)half of the school holidays;
v)on Father’s Day; and
vi)on the father’s birthday.
There were other orders, of which order 14 is relevant:
That the parties keep each other advised of their current residential address and current phone numbers and that each party provide to the other details of any proposed change to either their address or their telephone number at least one (1) week in advance of the same.
The Father commenced further contravention proceedings in September and November 2011. Those matters were resolved by consent orders made on 16th December 2011.
However, on 10th December 2011 the Mother forwarded an email to the Father, saying:
In compliance with the Family Court Orders this email is providing seven days notice of change of address.
The email gave an address in [W].
The Father commenced proceedings by way of initiating Application on 14th December 2011, seeking an order as a matter of urgency that the Mother be restrained from residing more than 20 kilometres from the [C] Police Station.
The Mother filed a Response on 23rd December 2011, opposing the Order sought by the Father.
Orders Sought
The parties were not legally represented when they filed their respective Application and Response. They have since obtained legal representation and their lawyers have filed an Amended Application and an Amended Response.
In his Amended Application, filed in court on 9th January 2012, the Father seeks these orders:
1. The parents have equal shared parental responsibility for the child [X] born [in] 2004 (“the Child”).
2. The Mother is restrained from:
2.1Relocating the Child to [W] or to any other location outside the [C] local area; and
2.2Enrolling or causing or permitting the continued enrolment and attendance of the Child at any other school save for [E] School; and
2.3the Mother is to do all things necessary to implement this Order no later than 27 January 2012.
3.In the event the Mother elects to reside in [W] or otherwise outside the Western Suburbs area, the Child is to live with the Father in the [C] local area, and spend time with the Mother as follows:
3.1Each alternate weekend from after school on Friday until 6pm on Sunday; with the Mother to collect the Child from his school at the commencement of such weekend and return the Child to the Father at the [C] Police Station at the conclusion of such weekend;
3.2Each Thursday from after school until 7:30pm the same evening provided that the Mother collect the child from school, and returns the child to the Father at [C] Police Station and stays in the [C] local area for the duration of the spend time period;
3.3On any further periods agreed between the parents from time to time; and
3.4Other such times as contained within Orders 3(c)-(g) of the Orders dated 1 July 2011.
4.In the event that the Mother elects to return to [C] and reside there in, which election shall be evidenced by the Mother relinquishing or otherwise sub-letting, the premises she presently leases at [W] on the Central Coast of New South Wales, then the Child, immediately upon the resumption of residence in the [C] area, is to spend time with the Father in accordance with the Orders dated 1 July 2011.
5.That in the event the Mother elects to reside in [W] or otherwise outside the Western Suburbs area, Orders 5-18 and Notations A-C of the Orders dated 1 July 2011 continue to apply.
In her Amended Response filed on the morning of the hearing, the Mother seeks the following interim orders:
1. that the Orders of 1 July 2011 remain in place.
2.That the parties do all reasonable things to accommodate any minor adjustment of the Orders of 1 July 2011, so that the Orders be applicable in circumstances where the Respondent Mother and child may reside in the Central Coast area.
3.That the Mother not be restrained from relocating the child to [W] or to any other location outside the [C] Local Area.
4.The Mother not be restrained from enrolling or causing or permitting the continued enrolment and attendance of the Child at another school save for [E] School.
5.That, in the event that the Mother elects to reside in [W] or otherwise outside the Western Suburbs area, the Child continues to reside with the Mother and continues to spend time with the Father as per the Orders of 1 July 2011.
Evidence and Submissions
The Father relies on the following:
a)his affidavit affirmed on 13th December 2011;
b)his affidavit affirmed on 6th January 2012;
c)the affidavit of the Father’s partner Ms E affirmed 6th January 2012; and
d)the Family Report prepared by Dr V on 12th June 2011 and released to the parties by the Court on 21st June 2011.
The Mother relied on her affidavits affirmed on 22nd December 2011 and 13th January 2012.
It is submitted on behalf of the Father that the Mother’s move to [W], which took place on 17th December 2011[2], is a unilateral relocation which will adversely affect:
a)the Father’s time with the child;
b)the child’s schooling;
c)the child’s soccer, a game which he enjoys; and
d)the child’s peer relationships in the area.
[2] Affidavit of [Ms Perry] 22.12.2011 at paragraph [5]
The Father’s solicitor, Ms Jamieson, submitted that the authorities supported the view that an interim relocation would be de-stabilising to the child and adverse to the continuation of a meaningful relationship with the child’s father (see Morgan & Miles[3]; Prewett & Mann[4] and Rogers & Lenard[5]). The child should return to the [C] area and re-commence his attendance at [E] School, where he has done well and has built up strong peer relationships.
[3] [2007] FamCA 1230; (2007) FLC 93-343
[4] [2008] FMCAfam 1523
[5] [2010] FMCAfam 764
The Father’s solicitor tendered a letter from the Principal of [E] School, in which she stated that the child’s enrolment at [W] School would be short term until a final order is made by the Court. The child’s substantive enrolment will remain at [E] until then. The Principal expressed the view that the child had been unsettled and confused, as he liked [E] and did not wish to change schools.
It was submitted that the adverse effect on the child would be minimised if he were to return to the [E] school before the first term started. The child would be able to resume his peer relationships and continue to play [omitted] with the team in which he has previously played.
There should be an updated Family Report so that the child’s views could be considered by the Court.
Further, it was submitted that this is a case where an order has already been made by consent that the parties are to have equal shared parental responsibility for the child. By taking a unilateral decision to relocate the child’s residence out of Sydney and to change the child’s school, the Mother has breached the requirements of s.65DAC of the Act, which requires major long-term issues in relation to the child to be made jointly.
For the Mother, Mr Daoud submitted that the effect on the child would be minimal. If the Father was not prepared to travel a greater distance to collect and deliver the child, the Mother was prepared to do all the travelling, even to the extent of staying with her parents each Wednesday night so that the child could spend each Wednesday afternoon and night with his father, as provided by the current orders.
The Mother and her partner wish to relocate to the Central Coast to give themselves a better lifestyle and to live in an area where housing is more affordable to purchase.
The Mother relies on the decision of Taylor & Barker[6], where the Full Court, on appeal from a decision of a Federal Magistrate, noted that the factual matrix in which the Federal Magistrate’s conclusions were reached was an important background. His Honour had determined that the decisive factor was the mother’s happiness and contentment, and, in the circumstances of that case, it could not be said that the Federal Magistrate was wrong in elevating this factor to be the decisive factor in the case.
[6] [2007] FamCA 1246; (2007) FLC 93-345
The Relevant Law
In Mallahan & Mallahan[7] Murphy J said of relocation cases:
[7] [2010] FamCA 631
In my view, it remains the case that, as I said in the earlier decisions referred to:
· A “relocation” case is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
· A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findi9ngs about parental responsibility and quantity of time.[8]
[8] [2010] FamCA 631 at [27]
The decision of Boland J in Morgan & Miles[9] is, to my mind, particularly helpful when a Court is dealing with a unilateral relocation on an interim basis. Her Honour stated at [80] and [81]:
80. It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed parent’s freedom of movement,
[9] supra
remain valid.
81. What the legislation now requires is:
- considering of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.[10]
[10] [2007] FamCA 1230; (2007) FLC 93-343 at [80]-[81]
It is the case that when making a parenting order, the Court must regard the best interests of the child concerned as the paramount consideration (Family Law Act, s.60CA).
The Court determines what is in a child’s best interests by considering the matters contained in paragraphs 60CC(2) and 60CC(3) of the Act.
When making a parenting order, the Court is required by s.61DA to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Where the Court makes an order that a child’s parents are to have equal shared parental responsibility for the child, s.65DAA of the Act requires the Court to consider whether the child spending equal time with each parent is both in the best interests of the child and reasonably practicable. If the Court does not make such an order, it must consider whether the child sp-ending substantial and significant time with each parent is both in the best interests of the child and reasonably practicable (see s.65DAA(2)).
I have considered all of the above matters.
Conclusions
There appears to be little doubt, on the evidence before the Court, including the Family Report, that the parents’ relationship is poor and marked by conflict. Nevertheless, they have been able to arrive at consent orders, both on an interim and on a final basis, on several occasions.
The consent orders made on 1st July 2011 provided that the parties have equal shared parental responsibility for [X]. The Father seeks such an order in his Amended Application. The Mother’s Amended Response is silent on the issue.
In my view it is appropriate to apply the presumption that it is in this child’s best interests for his parents to continue to have equal shared parental responsibility for him.
I am not satisfied that it is in this child’s best interests for him to spend equal time with each of his parents. There is too much in the way of conflict for that to be viable.
The current orders provide for the child to spend substantial and significant time with the Father and it appears to me that it is in the child’s best interests for this state of affairs to continue.
This is an interim hearing and it is not possible to test the parties’ evidence by cross-examination. It is not always possible to make findings of fact on contested issues.
It appears from the Family Report that it is of benefit to the child to have a meaningful relationship with each of his parents. He also appears to have a positive relationship with the Father’s partner, Ms E.
The Father is concerned that the meaningful relationship will be adversely affected if the child is moved to [W] to live.
There is no evidence before the Court that there is a need to protect the child from physical or psychological harm from being exposed or subjected to abuse, neglect or family violence, although there have been Apprehended Violence proceedings against the Father in the past.
The Court has only the second hand evidence of the Principal of [E] School about [X]’s wishes. The Principal said in her letter that he is confused and does not want to go. He likes the school.
The Mother has proposed that the Father’s time with the child will not be reduced as a result of her move. If necessary, she says, she will do all the travelling so that [X] still spends the same amount of time with the Father as he is doing now under the present orders.
The Mother states that she will even stay overnight at her parents’ home on a Wednesday so that the child can still continue to spend the Wednesday afternoons and evenings with his father. This proposal is untested, but it raises the concern that on a Thursday morning, a school day, the child would have to travel from the Mother’s parents’ home in South-Western Sydney to the Central Coast to go to school, a journey which would take between an hour and a half or two hours, according to the parents’ estimates.
This may not be in the child’s best interests. It is difficult to see that the Mother can continue to maintain exactly the same time for the child to spend with his father over the time until this matter can be heard on a final basis. It does not seem to be a reasonably practicable arrangement.
In my view, the Mother’s actions are precipitate. She and her partner have moved the child out of Sydney to the Central Coast and have “burned their boats” by renting a home in [W]. They have no fall-back position; they have left their previous residence.
In my view, the decision in Taylor & Barker[11] should be distinguished on its facts. I note that the decision appealed from was a decision on a final hearing where there had been a Family Report and the Federal Magistrate (Brewster FM) had had the opportunity to hear oral evidence (see Taylor & Barker[12]).
[11] supra
[12] [2006] FMCAfam 706
In my view, the Court should follow the decision in Morgan & Miles. The facts in the decision appealed from[13] are not dissimilar to the basic outline of the facts in the present matter, in that:
a)It was an interim decision;
b)The Mother had unilaterally relocated the child’s residence whilst the proceedings were pending; and
c)The distance travelled (144 kilometres) was only slightly greater than the distance involved in this case (137 kilometres).
[13] Also a decision of Brewster FM
However, Boland J noted that whilst the distance moved by the Mother in the case before her was only 144 kilometres, there was an “artificiality” in determining involving relocation on the basis of distance.[14]
[14] (2007) FLC 93-343 at [91]-[92]
In any event, the distance involved is only a part of the overall picture. The distance involved is great enough to necessitate the child being removed from his old school and placed in a new school, without any input from his father, who has joint parental responsibility. It would hardly be feasible for this child to continue to play in the same [omitted] team as he has been, and he will lose most if not all of his peer relationships with children from his school or the surrounding area.
It is not in the best interests of this child to have his residence relocated by his mother before the matter can be properly investigated by way of an updated Family Report and the re-appointment of an Independent Children’s Lawyer. The Court would wish to have some evidence of the child’s views before making a final decision.
There is a need for some stability in this child’s life before a decision is made about his future locality. That stability is best assured by his remaining in the school that he has been attending to date and remaining in the general area where he has been living.
That said, neither party should assume that the result of this interim hearing will accurately predict the outcome on a final basis. The Mother does not have to demonstrate “compelling” reasons for relocating and the Mother may be able to demonstrate on a final hearing that a move to the Central Coast will, in all the circumstances, be in the best interests of the child. It can hardly be the case that this child necessarily has to spend his entire education at [E] or spend his entire childhood in the [C] area.
In present case, however, the Mother’s move with the child to [W] was precipitate and will adversely affect the child in his relationships with his father and others for the time being.
It will be better for this young boy if he goes back to school at [E] until the relocation issue can be properly considered at a final hearing. His enrolment at the school remains current.
The Mother has left her previous accommodation in the [C] area and she will have to find somewhere else to live for the time being. For the purposes of young [X]’s travelling to and from school and attending such things as [omitted] training, the Mother should for the time being reside within a distance of twenty five kilometres from [E] School.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 17 January 2012
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