G and L
[2007] FMCAfam 1123
•21 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| G & L | [2007] FMCAfam 1123 |
| FAMILY LAW – Parenting – relocation of children – interim parenting orders where mother unilaterally moved to Adelaide from Sydney with children. |
| Family Law Act 1975, ss.60CA, 60CC |
| Goode & Goode [2006] FamCA 1346 |
| Applicant: | G |
| Respondent: | L |
| File Number: | PAM 3680 of 2002 |
| Judgment of: | Pascoe CFM |
| Hearing date: | 20 December 2007 |
| Date of Last Submission: | 20 December 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Marsden Law Group |
| Solicitors for the Respondent: | Bob Rosic & Kinchington Solicitors |
THE COURT ORDERS PENDING FINAL ORDER THAT:
In the event that the mother relocates to Sydney, then from the date of her arrival, the children, F born 1996 and E born 1997, to live with the mother and to spend time with and communicate with the father as follows:
(a)Each alternative weekend from the conclusion of school on Friday to the commencement of school on Monday.
(b)On a Thursday preceding a non-contact weekend from the conclusion of school until the resumption of school the Friday morning.
(c)For the first half of all school holidays. The father to collect and return the children to the mother’s home.
(d)Christmas day 2007.
(e)On 25 February 2008; that being the father’s birthday, for a period of three hours. The father is to collect the children after school, and the mother is to collect the children from the father’s residence.
(f)Telephone contact with the children each Monday, Wednesday and Friday evening between 6.00pm and 7.00pm. The mother is to ensure that the children are available for telephone contact with the father through F’s mobile telephone.
In the event that the mother choses to stay in Adelaide, the children to live with their father, and to spend time with their mother in Adelaide, as follows:
(a)From 7 January 2008, until the recommencement of the school term in Sydney, and thereafter for all school holidays, from the first Saturday after the conclusion of term, to the first Sunday prior to commencement of the new school term.
(b)On Friday 29 February 2008, from the conclusion of school, until Sunday evening 2 March 2008.
(c)For the purposes of the above orders, the mother is to purchase return airfare tickets for the children to travel to and from Adelaide and to do all things necessary to ensure that she is at the airport to collect the children and to facilitate their return to the father. The father is to do all things necessary to deliver the children to Sydney airport and to collect the children from Sydney airport following their return from Adelaide.
Both parents are to have equal shared responsibility for their children.
Each party to keep the other advised in writing of his/her residential address, email, mobile and landline details.
That pursuant to s.62G(2) of the Family Law Act1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in s.60CC of the Act. The parties are to send copies of all of their court documents to the family report writer within 3 days of being requested to do so by the family report writer.
That the matter come before me for final hearing on 4 March 2008 at 10.00am.
Pursuant to s.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 Annexure A and these particulars are included in these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAM 3680 of 2002
| G |
Applicant
And
| L |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter came before me following orders of 20 November 2007, which were made by FM Housego. FM Housego ordered that the mother ensure that the children, F born 1996 and E born 1997, be brought to the Family Law Courts in Goulburn Street on Friday 30 November 2007. Her Honour also ordered that the parties attend a Child Dispute Conference. Both orders were complied with.
The history of the matter is outlined by FM Housego in her Reasons for Judgment of 20 November 2007.
Relevantly, the mother had, contrary to orders made by the Federal Magistrates Court on 11 March 2003, relocated the children to Adelaide. The father in his affidavit alleges that this was done without his consent. The mother disputes this.
In accordance with the principles set out in Goode & Goode [2006] FamCA 1346, the object and principles set out in the Family Law Act1975 (Cth) (‘the Act’) are to be taken into account in interim applications. The best interests of the child is the paramount consideration pursuant to s.60CA.
The best interests of the child are to be determined by an examination of the ‘primary considerations’ under s.60CC(2) of the Act, and the ‘additional’ considerations under s.60CC(3) and s.60CC(4).
One of the key issues FM Housego faced in this matter, and which I now face, is the lack of evidence as to whether or not the father consented to the children being relocated to Adelaide. What is clear is that the mother did not seek the Court’s consent in moving the children interstate. Further, the move interstate did significantly curtail the time the children spent with their father. Prior to orders made by me on 30 November 2007, the children had not seen their father for over three months.
Another difficulty I face is that there is scant evidence as to the views of either child. The children are 10 and 11, and thus of an age where their views should be afforded some weight. School reports of both children suggest that they are performing satisfactorily at school in Adelaide, and the mother deposes that they are well settled in their new environment. Further evidence is needed to confirm that this is indeed so.
Importantly, I also lack evidence about the relationship both children have had with their mother and father. There is, however, nothing to suggest that there is anything negative in the relationship between the children and their father.
The parties have shown that they are not able to communicate with each other in an appropriate way about arrangements for the children. Certainly, at this stage, I am not able to conclude that either parent would facilitate a meaningful relationship with the other. When it is proposed that the children move such a considerable distance, it is difficult to see how a meaningful relationship with both parents can be maintained without a great deal of good will between the parties. Therefore, it is likely, that the children’s relationship with one of their parents will be diminished if I were to allow a move to Adelaide on an interim basis. Further, the law is quite clear that the mother should not be permitted to unilaterally decide to relocate and impede the ability of the children to continue to develop a meaningful relationship with the father by presenting the move as a fait accompli.
The only circumstances in which I would feel able to make an order on an interim basis for the children to live with the mother in Adelaide would be if there was clear evidence that the father had consented to such an arrangement and the parties had shown a capacity and a willingness to co-operate in order to ensure that proper arrangements were in place so that the children could have a meaningful relationship with both parents. This is clearly not the case in the current circumstances.
I consider it relevant that the mother removed the children without seeking any orders from the Court. I also consider it relevant that the father acted reasonably quickly in bringing proceedings before the Court seeking their return to Sydney. I note that there appears to be arrears of child support and that the mother has provided the necessary financial support for the children.
A family report is clearly needed in this matter and should be provided urgently.
Conclusion
The children are now back in Sydney. Having lived in Sydney for the bulk of their lives, it is a place they are familiar with, and no doubt they have connections and strong bonds here. I cannot see how it could possibly be in their best interests at this stage for me to make orders permitting them to return to Adelaide when it may be determined after a final hearing that it is in their best interests to remain in Sydney.
Having considered all the relevant matters under s.60CC, I therefore consider that it is in the best interests of the children to remain in Sydney and for me to make orders which best ensure a continuing relationship with both parents, pending final hearing, which should be held as soon as possible.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Pascoe CFM
Associate: M. Azzopardi
Date: 21 December 2007
0