Geddes and Toomey

[2014] FCCA 1814

FEDERAL CIRCUIT COURT OF AUSTRALIA

GEDDES & TOOMEY [2014] FCCA 1814

Catchwords:
FAMILY LAW – Parenting – recovery order – mother moved to Queensland with children unilaterally – final orders made in 2011 provide for the father to spend time with the children during school holidays.

Legislation:

Family Law Act 1975, ss.4, 60CC, 60I, 67V

Morgan v Miles [2007] FamCA 1230

Applicant: MR GEDDES

Respondent: MS TOOMEY

File Number: DNC 51 of 2011

Judgment of: Judge Harland

Hearing date: 11 August 2014

Date of Last Submission: 11 August 2014

Delivered at: Darwin

Delivered on: 13 August 2014

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Ms Terrill

Solicitors for the Respondent: Terrill & Associates

ORDERS

1. That the father’s application in a case filed on 28 July 2014 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 51 of 2011

MR GEDDES

Applicant

And

MS TOOMEY

Respondent

REASONS FOR JUDGMENT

1. On 5 October 2011 the parents entered into final parenting consent orders. Those orders were amended by consent  on 18 July 2013.

2. The parents have three children X aged 10 and twins Y and Z who will turn 9 next month.  The 2011 orders provide for the parents to have equal shared parental responsibility and for the father to spend time with the children during school holidays.

3. The father filed an urgent application on 28 July 2014 seeking a recovery order after discovering that the mother had again moved to Queensland with the children without his knowledge or consent.

4. The father lives at (omitted), outside of Darwin.  The mother and children were living at (omitted) in Darwin until she moved with the children to Queensland during the recent July school holidays.

5. The father says that he has on occasion, by informal agreement, spent time with children in addition to school holidays. He says that it has been about once a month. The mother disputes the regularity of this additional time.

6. In his affidavit the father deposes to the fact that as from 28 July 2014 (two days after swearing his affidavit) he would be working remotely for three weeks. He seeks the immediate return of the children.  He seeks no other orders, as presumably he is content for the 2011 orders (as amended) would continue.

7. The father’s affidavit does not address the issue of what arrangements he seeks for the children if the mother refuses to return with them.  This is a possibility which should have been canvassed in his affidavit.

8. The mother seeks that the father’s application be dismissed. She also seeks no other orders presumably on the basis that the 2011 orders (as amended) will continue.

9. It is agreed that in December 2012 the mother moved to Queensland with the children without the father’s consent. After receiving a letter from the father’s lawyer the mother agreed to return to Darwin with the children.

10. The mother concedes that she relocated to Queensland with the children without informing the father. She concedes that she breached the orders by doing so. This is because of the equal shared parental responsibility order and the fact she enrolled the children in schools in Queensland without consulting with him.

11. The mother says she moved to Queensland after breaking up with her de facto partner Mr R. She says she had to move out of the home she shared with him and has no job as she was the (occupation omitted) for Mr R’s company. She says she has a property in Darwin but it is being rented and the lease does not expire until November 2014.

12. The mother has extended family in Queensland. She says soon her mother will be the only family she has left in Darwin.

13. The father says he paid child support until May 2014. In May he ceased employment with his employer and set up his own business (business omitted). He says he understands he will not be in arrears for child support. The fact is that as at 11 August 2014 he has not paid child support since May 2014 and does not indicate when he will resume paying child support.

14. The mother says if she has to return to Darwin she has nowhere to live, no employment and is receiving no child support. The father’s response to this in oral submissions was that she could make a property claim against her de facto partner and seek maintenance from him. This is not an answer as the Court has no information about whether or not she has a claim and what the value of any claim might be. The father offers no practical or financial support to the mother to facilitate her return to Darwin with the children.

15. The children have lived primarily with their mother since the parties separated in 2008. The father often works away for weeks at a time in remote areas.  When asked during submissions, the father’s lawyer said that the children could live with him if the mother refuses to return to Darwin with the children.  This is not something he contemplated.  The mother is silent about this issue in her affidavit.

The application of the law

1. In deciding whether or not to make a recovery order the children’s best interests is the paramount consideration: section 67V of the Family Law Act 1975 (the Act).

2. The father’s lawyer referred to the decision of Morgan v Miles [2007] FamCA 1230. In that case Boland J sitting as a member of the Full Court considered relevant issues to interim relocation applications. Ms Farmer submitted that the mother unilaterally relocated in what she was in effect seeking to do was to relocate on an interim basis without the court having the benefit of testing the evidence. She further submitted that the mother should be required to return the children to Darwin where she could pursue an application to relocate in the usual way.

3. The facts in Morgan v Miles were very different to the facts here. Ms Farmer emphasised that the distance was much greater in the current case than in the case in Morgan v Miles but what is of more significance in my view is the fact that at the time of the unilateral relocation in Morgan v Miles the father was seeing the children on a week about basis. In the current case at its highest the father was seeing the children once a month. The regularity and frequency of that is disputed and that is an issue that I cannot determine on an interim basis.

4. The parties have equal shared parental responsibility and this will continue to be the case. It seems clear from the parties’ material that they do not communicate well. It is also clear that the mother breached the equal shared parental responsibility order by not consulting with the father before moving and not consulting with the father about the children’s change of schools.

5. I must consider the relevant section 60CC factors. Neither party raises any issue of family violence or abuse. It is clear that the children have a meaningful relationship with both their parents and that this will continue regardless of whether the children are in Darwin or Queensland.

6. I do not have any evidence about the children’s views.

7. The children have extended family in Darwin and Queensland and the 2011 orders (as amended) enable the children to spend time with both sets of extended family members particularly during school holidays.

8. There is an issue in dispute between the parties as to the extent to which the father has taken the opportunity to participate in decisions and spend time with the children. The father does not say anything in his affidavit about being involved with the children’s schools and the mother says he has not been involved. These issues would be explored at the final hearing where evidence is tested if either party seeks to change the final orders.

9. The father was very careful in his wording with respect to child support in his affidavits. The father has not contributed financially to the support of the children since May 2014 and does not give any indication as to when he will recommence and suggests that he will not be in arrears and therefore not be paying anything presumably for at least May June and July 2014. This is a relevant factor to take into account.

10. The definition of long-term major issues in section 4(e) of the Act is of some relevance here as it refers to “changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent”. Section 60CC(3)(e) refers to the practical difficulties and expense of children spending time and communicating with the parent and whether or not that difficulty or expense will “substantially affect” the children’s right to maintain personal relations and direct contact with both their parents on a regular basis.

11. Boland J reflected in Morgan v Miles that the Family Law Act does not treat relocation cases as a special category of parenting case. In most cases relocation applications can only be properly determined on a final basis rather than an interim basis because of the potential far-reaching consequences and the fact that issues of evidence of some controversy cannot be tested on an interim basis. However each case must be determined on its own facts. The significant factors in this case is that the father pays no child support currently and that the orders which provide for him to have time during school holidays will not be affected by the move. Whilst I acknowledge that the father has had some informal time at other times than the school holidays that does not appear to be so significant that the time the father spends with the children will be substantially made more difficult and it certainly will be to some extent.

12. The mother says the children are settled in their new schools.  Given the facts in this case the mother appears to have a strong case in favour of relocation on a final basis.  It is therefore a real possibility that if I order the children to be returned that there may be further upheaval for them in several months’ time.  I acknowledge that the parties have only had the opportunity to file limited material and there may be other factors not known to me which would speak against relocation.

13. The father complained that the children were not available to speak to him in accordance with the orders.  This appears to be confined to the period the mother and children were moving rather than being an ongoing issue.

14. I accept that the mother did not comply with the requirements of section 60I and did not attempt to genuinely resolve the dispute. I accept that the mother should be criticised for taking the unilateral action that she did. She should have consulted with the father first even knowing that most likely the father would refuse as he has previously. The fact that the parties have difficulty communicating and are unlikely to reach an agreement is not an excuse to not comply with the legislation. Given the final orders and given the correspondence between lawyers the mother was well and truly aware that she was breaching her obligations. However, in determining this application the children’s best interests are paramount. The children have already been moved and are settled in new schools. The father has not proposed in his application any change to the final orders which provide for him to have time during school holidays. The mother is not currently employed and is not receiving child support. The mother did not have any immediate accommodation available in Darwin.

15. I am mindful that the father may see this outcome as rewarding the mother for her unilateral action.  In most cases the parent who moved the children unilaterally is required to return the children pending a final hearing but each case must be considered on its own facts and the decision must be reached in accordance with the children’s best interests as the primary consideration, not punishment of a parent.

16. In the unusual circumstances of this case I am not satisfied that it is in the children’s best interests to grant the recovery order.

I certify  that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  13 August 2014