GI & TI
[2007] FMCAfam 302
•17 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GI & TI | [2007] FMCAfam 302 |
| FAMILY LAW – Children – interim proceedings – unilateral relocation of one party from Queensland to Victoria – order that Child be returned to Queensland – no movement restraint injunction or passport delivery orders. FAMILY LAW – Practice and Procedure – transfer of proceedings sought from Queensland to Victoria – application refused FAMILY LAW – Property – interim cash sum sought – application refused. |
| Family Law Act 1975 (Cth), ss.60CC(2),(3) and (4), 61DA, 65DAA, 65 DAE and 65DC |
| AMS v AIF (1999) 199 CLR 160 B & B [2007] FMCAfam 82 Campbell and Spalding [1998] FamCA 66 Goodall v Nationwide News Pty Limited [2007] FMCA 218 M & K [2007] FMCAfam 26 PS & OS [2007] FMCAfam 285 U v U (2002) 211 CLR 238 |
| Applicant: | GI |
| Respondent: | TI |
| File Number: | BRC4688 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 11 May 2007 |
| Date of Last Submission: | 11 May 2007 |
| Delivered at: | Brisbane (by Baumann FM) |
| Delivered on: | 17 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Brandon (solicitor) |
| Solicitors for the Applicant: | Evans & Company Family Lawyers |
| Counsel for the Respondent: | Ms S McNeil |
| Solicitors for the Respondent: | Maria Barabayannis & Co |
INTERIM ORDERS
That until trial of this action or earlier Order, the Applicant and the Respondent share equal parental responsibility for the child, BDI;
That each party shall be responsible for the day to day care and welfare of the child, whilst the child is in their care;
That until trial of this action or earlier Order:-
(a)if the Respondent returns to the Gold Coast:
(i)the child shall live with the Applicant at all times as may be agreed, but failing agreement:
1. in week one of a fortnightly cycle from 5pm Sunday until 7am Tuesday – with the child remaining with the Respondent at all other times on the Gold Coast;
2. in week two of a fortnightly cycle from 9am Saturday until 7am Tuesday and from 5pm Thursday until 7am Friday – with the child remaining with the Respondent at all other times on the Gold Coast; and
(b)if the Respondent does not return to the Gold Coast:
(i)the child shall live with the Applicant on the Gold Coast;
(ii)the child shall spend such time with the Respondent as may be agreed, provided that:
1. the Respondent not remove the child from the Gold Coast, without the written agreement of the Applicant first obtained; and
2. the Respondent shall be responsible for all costs associated with her spending time with the child.
That for purposes of Order 3 the Respondent shall pre-pay airfares from Melbourne to the Gold Coast or Brisbane for the child and the Respondent not later than seven (7) days from the date of these Orders.
That for the purpose of changeover, the party with whom the child is spending time shall deliver the child to the other party at the conclusion of such time.
That the child continue enrolment and re-commence attendance at preschool situated in Medgeeraba in the State of Queensland on at least each Monday and Friday.
That the matter be adjourned to 9:30 a.m. at 20 June 2007 before FM Jarrett in the Federal Magistrates Court of Australia at Brisbane for further directions.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC4688 of 2007
| GI |
Applicant
And
| TI |
Respondent
REASONS FOR JUDGMENT
Interim application
The Applicant father (“Father”) seeks interim parenting orders in respect of a child of the marriage (“Child”) to the Respondent mother (“Mother”).
The Father seeks interim orders in the following terms:
(1)That until trial of this action or earlier Order, the Applicant and the Respondent share equal parental responsibility for the child, BDI;
(2)That each party shall be responsible for the day to day care and welfare of the child, whilst the child is in their care;
(3)that until trial of this action or earlier Order:-
(a)if the Respondent returns to the Gold Coast:
(i)the child shall live with the Applicant at all times as may be agreed, but failing agreement:
1. in one week of a fortnightly cycle from 5pm Sunday until 7am Tuesday – with the child remaining with the Respondent at all other times on the Gold Coast;
2. in week two of a fortnightly cycle from 9am Saturday until 7am Tuesday and from 5pm Thursday until 7am Friday – with the child remaining with the Respondent at all other times on the Gold Coast.
(b)If the Respondent does not return to the Gold Coast:
(i)The child shall live with the Applicant on the Gold Coast
(ii)The child shall spend such time with the Respondent as may be agreed, provided that:
1. the Respondent not remove the child from the Gold Coast, without the written agreement of the Applicant first obtained;
2. the Respondent shall be responsible for all costs associated with her spending time with the child.
(4)That for purposes of Order 4 [sic] the Respondent shall pre-pay airfares from Melbourne to the Gold Coast or Brisbane not later than seven (7) days from the date of these Orders.
(5)That for the purpose of changeover, the party with whom the child are [sic] living with shall deliver the child to the other party at the conclusion of such time.
(6)That the child continue his enrolment and attendance at preschool situated in Medgeeraba in the State of Queensland on at least each Monday and Friday.
(7)That until further Order each party, their servants and/or agents be and are hereby restrained from removing or attempting to remove or attempting to remove or causing or permitting the removal of the said child from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.
(8)That the Respondent, within 14 days of the date of this Order, shall provide the child’s current Australian Passport to the Applicant’s Solicitors, Messrs Evans and Company Family Lawyers of Bundall, where it is to be held and not released unless by the express written consent of each party or Court Order.
(9)That in the event the Respondent does not return the child as Ordered herein a recovery order issue directed to all Officers of the Australian Federal Police and to all Officers of the Police Forces in each State and Territory of Australia requiring the return of the child, to the Applicant and for that purpose stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.
(10)Such further or other Order or Orders as the Court deems meet.
(11)That the Respondent meet the Applicant’s costs of and incidental to this Application.
The Mother seeks interim orders in the following terms:
(1)That these proceedings be transferred to the Dandenong Registry of the Federal Magistrates’ Court.
(2)That the child of the marriage, BDI born in June 2005 live with the wife in Melbourne.
(3)That the husband and wife have equal shared parental responsibility for the child.
(4)That the child spend time with the husband as follows:
(a)each alternate weekend in Melbourne on Saturday and Sunday from 10am until 5pm each day until the child attains the age of two and a half years;
(b)once the child is two and a half years of age, each alternate weekend from 5pm Friday until 5pm Sunday in Melbourne;
(c)once the child attains the age of four years, for four one week periods each year in Queensland;
(d)further by agreement between the parties.
(5)That the husband be responsible for return airline tickets between Coolangatta and Melbourne for himself and accommodation costs for the purpose of giving effect to Orders 4(a) and 4(b) hereof.
(6)That the wife shall be responsible for payment of return airfares for the child between Melbourne and Coolangatta for the purpose of giving effect to Order 4(c) hereof.
(7)That the husband forthwith sign all documents and do all acts and things necessary in order to release to the wife the sum of $3,000 from the Commonwealth Bank in the husband’s name to which the wife is a secondary cardholder, BSB number; account number.
(8)Such further or other Orders as this Honourable Court deems appropriate.
Principles to be applied and procedure to be followed
In relation to the principles to be adopted the Court adopts what was said by this Court in B & B [2007] FMCAfam 82 at paras 2-5 per Wilson FM (“B & B”):
“2. The principles to be applied on the determination of an interim application such as the present were recently reconsidered by the Full Court of the Family Court in Goode & Goode [2006] FamCA 1346. The best interests of the children remain the paramount consideration: Section 60CA of the Act; Goode & Goode [2006] FamCA 1346 at [69].
3. The framework in which those best interests are to be determined are the factors adumbrated in s.60CC of the Act. The objects and principles contained in s.60B of the Act provide the context in which the factors in s. 60CC are to be examined, weighed and applied in the individual case Goode & Goode [2006] FamCA 1346 at [10].
4. In Goode & Goode [2006] FamCA 1346 the Full Court was particularly concerned with the effect the amendments introduced by the Family Law (Shared Parental Responsibility) Act 2006 had on the approach that a court should take on, relevantly, an interim application. At [72] their Honours concluded that the amending Act evinced a legislative intent in favour of the substantial involvement of both parent’s in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence, and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the children.
5. In following the “legislative pathway”, their Honours set out a procedure to be followed on an interim application, at [82] as follows:
“In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
Evidence
The Court has had regard to the following evidence:
a)for the Father:
i)his affidavit sworn 17 April 2007;
ii)his affidavit sworn 9 May 2007;
iii)his financial statement sworn 9 May 2007;
and
b)for the Mother
i)her affidavit affirmed 30 April 2007; and
ii)her financial statement affirmed 30 April 2007.
The Court has disregarded for the purposes of this interim hearing a copy of a letter from a psychologist, Ms Mitchell, dated 4 May 2007 containing hearsay evidence about the disputed events of 10 April 2007.
Facts – residence and care of the child prior to unilateral relocation
With respect to residence and care of the Child prior to unilateral relocation there appear to be a number of relevant uncontroverted facts, as follows:
a)the Father and Mother have continuously co-habited since sometime in 1997 or 1998, and married on 12 May 2001;
b)the Child was born in June 2005 and is presently 22 months old;
c)the Father is employed by the Queensland State Government and earns $973.00 week (being salary, an FBT benefit, and rental income);
d)the Mother has had part time-employment for about the last seven months through a business established by the Father and Mother which does work for a Queensland State Government entity;
e)the Father and Mother have lived in Queensland for almost the entirety of their relationship, and certainly since some time in 1997 or 1998;
f)prior to December 2005 the Father and Mother lived with the Father’s parents (“Paternal Grandparents”);
g)from December 2005 to April 2007 the Father and Mother have lived in a home in Reedy Creek in the State of Queensland (“Family Home”);
h)the Paternal Grandparents own the Family Home and the Father and Mother have paid rent to the Paternal Grandparents;
i)the Paternal Grandparents relocated from the Family Home to another home in December 2005;
j)the Family Home is a two storey five bedroom home on acreage with a pool and tennis court in which the Child has his own bedroom;
k)the Father worked full time and the Respondent Mother cared for the Child except for the times when she worked on two half days per week, with the Mother being primary carer, and the Father assisting as he was able;
l)the Child was enrolled at a children’s centre (“the Centre”) (there is a dispute about the status of the Centre but that is not particularly material), and has been enrolled at that Centre for not less than 8 months on Mondays and Fridays;
m)the Centre is approximately 5 minutes from the Family Home;
n)the Paternal Grandparents and the Father’s sister (“Father’s Sister”) assisted with the care of the Child when required, with the Paternal Grandmother being available to help at short notice, as well as attending at the Child’s swimming lessons which the Child had attended since the age of 4 months;
o)the Paternal Grandparents assistance was “significant”, and the Child was particularly attached to the Paternal Grandfather;
p)the Child has had limited contact with the Mother’s family and seemingly no contact with the Maternal Grandmother; and
q)the Child has had some contact with the Mother’s sister (“Mother’s Sister”) resident in Queensland, about an hour’s drive from the Family Home.
Facts - unilateral relocation
With respect to the unilateral relocation of the child by the Mother there appears to be a number of relevant uncontroverted facts, as follows:
a)the Father and Mother had discussed the possibility of divorce on 10 April 2007, and there is a dispute as to whether the Father told the Mother to leave the Family Home and, if he did, whether he maintained that stance;
b)there was a dispute as to what occurred over the next day or so in terms of possible reconciliation (for present purposes, not a lot turns on that dispute, if anything), but the Father and Mother slept together on the night of 11 April 2007;
c)on 12 April 2007 the Father went to work. He came home early. Neither Mother nor Child were in the Family Home. On the kitchen table was an undated type written letter signed off with the Mother’s christian name. The following is the content of that letter:
“Dear [Father]
I have taken this course of action as it is the only one available to me. Your actions have forced my hand. This is not the way I wanted this all to end. We must take [Child’s] interestests [sic] into consideration, he is the most important one in this scenario. I would wish that we could conduct this situation with as much civility as possible for [Child’s] sake.
You know me and you know that I will never deny You or your Family reasonable access to [Child] given his tender age, at the present time and in the future.
Your family is of the utmost importance to you as mine is to me. I have made the decision to go to Melbourne temporarily. This will both give us time to sort out our situation. We have a return flight booked. I need support at this very difficult time in our lives. I did not and do not wish this to end unpleasantly.
You are [Child’s] Father and [Maternal Grandparents] and [Father’s Sister] are his family and play a very important role in [Child’s] life.
I can be contacted on my mobile.
[Mother]”.
(“the Mother’s Separation Letter”)
d)the Father says he forthwith called the Mother. There was no answer;
e)the Father sought legal advice. He was unable to obtain it until 16 April 2007. In the interim, he did not call the Mother as his lawyers advised him not to; and
f)when the Father did call the Mother on 16 April 2007 she indicated she had no intention of returning to Queensland. The Mother told the Father that she was staying with an Aunt in Mount Waverley, a suburb of Melbourne in the State of Victoria.
Facts – residence and care of the child post unilateral relocation
With respect to the residence and care of the Child post the unilateral relocation of the Child by the Mother there appears to be a number of relevant uncontroverted facts, as follows:
a)the Maternal Grandfather, a maternal aunt and uncle and their daughters (“Maternal Aunt”, ”Maternal Uncle” and “Maternal Aunt’s Family” respectively) live in Melbourne;
b)the Mother’s Sister intends moving to Melbourne “within the next few months”;
c)the Mother has secured accommodation in a three bedroom plus study unit in the Melbourne suburb of Chadstone;
d)the Mother has had financial assistance from the Maternal Grandfather and the Maternal Aunt and Uncle;
e)the Mother’s extended family live in Melbourne;
f)the Child has been enrolled in occasional care in Melbourne, for one day a week, being Monday; and
g)the Mother intends enrolling the Child in swimming lessons in Melbourne.
Issues
The essential issues in dispute and to be determined are as follows:
a)with whom the Child is to live, and where;
b)with whom the Child is to spend time, and whether that time ought be equal, substantial and significant, or otherwise, the latter being dependent upon relocation issues;
c)whether the proceedings ought be transferred from the Brisbane Registry to the Dandenong Registry;
d)whether a minor interim property settlement order should be made in favour of the Mother, and
e)whether an injunction restraining movement of the Child, and consequential passport delivery up and Airport Watch List orders ought be made.
Presumption of equal shared parental responsibility – section 61DA(1)
When the Court makes a parenting order in relation to a child the Court must 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. The presumption “is directed to the decision making responsibility of the parents”: B & B at para 16 per Wilson FM, ss.65DC and 65DAE, Family Law Act, 1975 (Cth) (“the FL Act”).
There is no evidence of abuse or violence warranting rebuttal of the presumption under s.61DA(2) of the FL Act.
There is no evidence which the Court consider warrants a finding that:
a)it is not appropriate for the presumption to apply: s.61DA(3) of the FL Act; and
b)it is not in the best interests of the Child for the presumption to apply: s.61DA(4) of the FL Act.
There was no submission from either parent that the presumption ought not apply.
In the circumstances, the presumption applies, as there is no evidence justifying removal from either parent of their parental decision making responsibilities.
The application of the presumption invokes the time spent provisions of s.65DAA(1) of the FL Act.
Time Spent
Section 65DAA(1) of the FL Act provides that:
“Equal time
(1) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
In order to determine whether equal time with each parent is in the best interests of the Child it is necessary to consider the primary and additional considerations in s.60CC(2)and(3) of the FL Act.
Primary Considerations – Section 60CC(2)
Benefit to the child of having a meaningful relationship with both parents – section 60CC(2)(a)
There is no dispute that both parents want a meaningful relationship with the Child, and that each parent wants the other parent to have a meaningful relationship with the Child. The issue between them is how that is to be achieved in the best interests of the Child when the Father resides on the Gold Coast and the Mother resides in Melbourne, and the effect their respective residential status will have on their ability to spend equal or substantial and significant time with the Child.
There is also presently no dispute that the Child will benefit from having a meaningful relationship with both parents and has done so in the past in circumstances where the Father and Mother have spent significant time with the Child.
The emphasis here must be on the benefit to the child, and not the dispute between the parents, because “a lack of meaningful relationship between the parents does not necessarily amount to a lack of benefit to the Child from a relationship with both parents”:PS & OS [2007] FMCAfam 285 at para 23 per Lucev FM.
The need to protect the Child – section 60CC(2)(b)
The evidence discloses no history of violence or abuse from which the Child must be protected.
Other considerations – section 60CC(3)
Views expressed by the child – section 60CC(3)(a)
There is no evidence of any view expressed by the Child, and even if there were, the Court would not place any weight on any views expressed due to the age of the Child.
The nature of the relationship of the child with each of the parents – section 60CC(3)(b)(i)
The Child has until the unilateral relocation lived in what might be described as a relatively traditional family arrangement with the Father working full time, and the Mother staying at home to care for the Child, except for two half days a week on which she works and during which the Child goes to a centre.
There is no dispute that the Child has a good relationship with both Parents. Likewise, there does not appear to be a dispute that the Mother has been the primary care giver. This is partly due to the age of the Child, and partly due to the relatively traditional style of the relationship between the Parents. Nevertheless, there remains a dispute as to the degree of the Father’s involvement in the care of the Child prior to separation. Further, the Mother has raised allegations concerning the Father’s health, in particular, alleged depression. It is not possible to resolve these controversies in interim proceedings, however, both Father and Mother desire to maintain a meaningful relationship with the Child, and that is a result that the Court ought to achieve, if it is in the best interests of the Child and otherwise accords with the relevant provisions of the FL Act.
The evidence indicates that the Child’s relationship, prior to the unilateral relocation, was both strong and appropriate with each parent.
Since the Mother’s unilateral relocation the Child’s relationship with each parent has obviously changed. The Father is “devastated” by the unilateral relocation of the Child. The Mother says, in affidavit evidence untested, that the Child is happy and doing well in Melbourne.
The nature of the relationship of the child with other persons – section 60CC(3)(b)(ii)
The Child had a significant relationship with the Paternal Grandparents. That relationship was a close and loving relationship. The Mother concedes this is the case, and in the Mother’s Separation Letter describes the Paternal Grandparents as “play[ing] a very important role in [the Child’s] life.” The Child lived under the same roof as the Paternal Grandparents for the first six months (approximately) of his life. Thereafter the Child has spent significant time with the Paternal Grandparents. It would appear that the relationship was close enough for it to be arranged for the Child to be left in the full time care of the Paternal Grandparents for a long weekend (5 – 7 May 2007) whilst the Father and Mother were to attend a wedding in Rockhampton (an event which did not occur because of the unilateral relocation of the Child with the Mother). On the present evidence, the Paternal Grandparents were part of the Child’s full time extended family.
By contrast, the Child has not spent significant time with the Maternal Grandparents. The Mother is estranged from the Maternal Grandmother. The Maternal Grandfather’s relationship with the Child prior to the unilateral relocation was limited to approximately four visits to Queensland per year (understandably so given the Maternal Grandfather lives in Victoria), and there was an annual visit from the Maternal Aunt. The Mother’s Sister lives in Queensland about an hour from the Family Home but there is little specific evidence of the relationship between her and the Child. On the evidence it cannot be said that the Child’s relationship with the Maternal Grandfather, Maternal Aunt and the Mother’s Sister have been significant relationships.
Since the unilateral relocation of the Child by the Mother the Child has lived with the Mother, and has seen significantly more of his Maternal Grandfather, Maternal Aunt and Uncle and Mother’s extended family. But that has been for less than four weeks at the date of interim hearing.
On the evidence it is clear that the most significant relationship that the Child has had (other than with the Parents) has been with the Paternal Grandparents.
The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and other parent – section 60CC(3)
Both Parents evince a willingness and ability to facilitate and encourage a close and continuing relationship between the Child and other Parent.
The Mother’s willingness rings somewhat hollow: she has unilaterally relocated to Melbourne from the Gold Coast and lives there in accommodation with the financial support of the Maternal Grandfather and her Maternal Aunt and Uncle. The unilateral relocation, done without consultation with or warning to the Father, necessarily precludes the Father from spending regular time with the Child. The Father has full time employment on the Gold Coast. That employment is with the Queensland State Government. There is no evidence of an ability to obtain new employment in Melbourne, or any reason why the Father should leave his presently secure employment on the Gold Coast, prior to the final hearing of this matter. The nature of the Father’s employment is such that his available finances and time prevent his commuting between the Gold Coast and Melbourne to see the Child. The financial position of the Mother is not such as to allow her to regularly travel to the Gold Coast from Melbourne to allow the Child to see the Father.
It is the Mother’s unilateral relocation, and her decision to reside in Melbourne (seemingly contrary to her original intentions, evinced by her apparently having originally booked return flights to the Gold Coast for her and the Child), which is the impediment to a close and continuing relationship between the Child and the Father. Moreover, apart from an assertion that there is no family support for the Mother on the Gold Coast, it is not apparent why it is necessary for the Mother to live in Melbourne, at least for the relatively short period prior to the final hearing of this matter. In any event, the evidence discloses that the Mother’s Sister lives within an hours drive of the Family Home. There is no evidence that that relationship between the Mother and the Mother’s Sister is anything other than a normal sisterly relationship. Whilst the Mother’s Sister is relocating to Melbourne, that has not yet occurred, but it is indicated that it will occur “within the next few months”. The Court cannot conclude that the Mother’s Sister will relocate prior to the final hearing. Further, it was freely conceded by Counsel for the Mother, that the financial support afforded to the Mother by her family was not conditional upon the Mother living in Melbourne, and that that financial assistance would almost inevitably be forthcoming if the Mother lived on the Gold Coast. The Court notes that this was not evidence from the bar table, but a concession quite properly made by Counsel for the Mother. Therefore the Mother could have remained on the Gold Coast with the same level of non-financial family support previously given by the Melbourne based family members, and the Mother’s Sister, and the increased family financial support, and can still do so. Apart from the generalised assertion concerning lack of family support, no cogent evidence was given by the Mother as to why this was not a more appropriate course of action which would facilitate and encourage a close and continuing relationship between the Child and the Father. In regard to this consideration (and other considerations which follow) the Court applies what was said in B & B at para 28 per Wilson FM:
“Thus, a party can not relocate unilaterally, and thereupon use that fact that he or she has created, to either justify a relocation or, more relevantly on the present application, as an impediment to the children spending time with the other parent.”
The above statement was made by the Court having had regard to the relevant authorities: B & B [2006] FamCA 1207; AMS v AIF (1999) 199 CLR 160; U v U (2002) 211 CLR 238; Campbell and Spalding [1998] FamCA 66.
The Court also takes the view that the Mother’s unilateral relocation is such that she has failed to facilitate the Father being able to spend time with and communicate with the Child, particularly in circumstances where she is aware of the Father’s employment and financial circumstances, and her own financial circumstances. These considerations are relevant for the purposes of s.60CC(4)(b) of the FL Act.
Likely effect of changes in child’s circumstances, including separation from parents and others – s.60CC(3)(d)
The Father’s primary proposal, which anticipates the Mother’s return to the Gold Coast involves the least change of the three proposals (the Father’s two proposals and the Mother’s proposal) before the Court. It would effectively return the Child’s position to something like the position prior to the Mother’s unilateral relocation, allowing, perforce, for the fact that the Mother and Father would no longer be cohabiting.
Both the Father’s alternative proposals (wherein the Mother does not return to the Gold Coast) and the Mother’s proposal (wherein the Mother stays in Melbourne) involve considerable change in the Child’s circumstances.
Given:
a)the age of the Child;
b)that the Child has, until the unilateral relocation, lived only in the Family Home;
c)the Child has, until the unilateral relocation, been cared for by the Father and Mother jointly, with the Mother taking the more traditional role as the primary care giver;
d)the close relationship with the Paternal Grandparents;
e)the relationship with the Father’s Sister;
f)the intermittent nature of the relationship with the Maternal Grandfather and Maternal Aunt and Uncle;
g)that there is no relationship with the Maternal Grandmother;
h)that the Child had been enrolled at the Centre for in excess of eight months; and
i)the Child’s familiarity with the Gold Coast surroundings, and the relative newness of the Melbourne surroundings,
the Court considers that it is in the best interest of the Child that the Child live in the environment with which the Child is familiar, and with or in proximity to those persons with whom the Child is most familiar (the Father, the Paternal Grandparents and the Father’s Sister, as well as those involved at the Centre and in swimming lessons); and, if she decides to return to the Gold Coast, the Mother. The Mother must be responsible for returning the Child to the Gold Coast.
In determining the likely effects of changes in the Child’s circumstances the Court has had regard to the evidence concerning the Child’s alleged progress whilst in Melbourne, noting that evidence is likely to be disputed at final hearing.
Practical difficulty and expense of child spending time with and communicating with parents and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis – section.60CC(e)
This is a case where:
a)the parents do not live in reasonable proximity;
b)both public and private transport is not readily available or financially viable for the purposes of spending time with each parent; and
c)whilst telephone contact is doubtless available, its utility in the case of a 22 month old child might well be limited.
So long as the Child remains in Melbourne there is both practical difficulty and expense involved in the Child’s spending time with and communicating with the Father. As indicated above, that practical difficulty is compounded by the financial circumstances of both the Father and Mother, and the expense of travel and communication between the Gold Coast and Melbourne. Manifestly, if the Child remains with the Mother in Melbourne that will substantially affect the Child’s right to maintain personal relations and direct contact with the Father on a regular basis. Given the Child’s age that effect is likely to be more substantial than if the Child were older: see M & K [2007] FMCA fam 26 at para 48 per Altobelli FM.
If the Child is to be afforded its right to maintain personal relations and direct contact with both parents on a regular basis this is best achieved by the Child moving back to the Gold Coast, and the Mother doing likewise.
Capacity to provide for the needs of the child, including emotional and intellectual needs – section.60CC(3)(f)
On the present evidence there is no reason to doubt that both parents have the requisite capacity (within their obviously limited means) to provide for the needs of the Child. Likewise, it would appear that the Paternal Grandparents and Father’s Sister and the Maternal Grandfather and the Maternal Aunt and Uncle have the capacity to assist the Father and Mother respectively with respect to the Child’s needs. On the undisputed evidence before the Court the Child’s emotional needs might be better served by the Paternal Grandparents and the Father’s Sister with whom the Child has long been familiar, rather than the Mother’s family members, with whom the Child has, until recently, only had an intermittent relationship.
Maturity, sex, lifestyle and background of child and parents – section 60CC(3)(g)
The evidence in relation to these factors is neutral, except to the extent that relevant matters are dealt with in other parts of these reasons for judgment.
Aboriginal and Torres Strait Islander Child – section 60CC(3)(h)
Not applicable in this case.
Attitude to the child and the responsibilities of parenthood demonstrated by each parent – section 60CC(3)(i)
Both parent’s attitude to the Child is an appropriate, loving and caring attitude, within the bounds of the relevant family, social and employment constraints otherwise referred to in these reasons for judgment.
As to the parent’s attitude to the responsibilities of parenthood s.60CC(4)(b) is relevant. In this regard, the Mother has, by her unilateral relocation, deprived the Father of the opportunity to spend time with the Child and communicate on a daily one on one basis as was the case prior to the unilateral relocation. That is a reasonably major abrogation of the responsibilities of parenthood as envisaged under the FL Act. The Court further notes that the Father has not necessarily fulfilled his obligation to maintain the Child in the short time since the unilateral relocation took place. However, given that there was only slightly more than three weeks between the application being filed by the Father and the interim hearing, the requirement for the Father to continue to maintain the Family Home, and the circumstances of the unilateral relocation without consultation or warning, the Father’s failure in that regard, whilst not to be condoned, is unsurprising and mitigated to a significant degree by the aforementioned circumstances.
Family Violence – section.60CC(3)(j) and (k)
There is no evidence of family violence.
Order less likely to lead to further proceedings to the Child – section.60CC(1)
Given that this is an interim hearing, and that a final hearing is unlikely to be long delayed, the Court does not consider that an order of this type is preferable, at this stage.
Time spent
Having considered all of the applicable considerations under s.60CC(2) and (3) of the FL Act, the Court considers it to be in the best interests of the Child to spend equal time with the Father and Mother. The question then arises whether it is reasonably practicable for the Child to spend equal time with both Father and Mother: s.65DAA(1) and (5), FL Act.
It is not reasonably practicable for the parents to spend equal time with the Child, no matter where the Child lives, unless one or other parent relocates. For reasons already stated, the Court considers it to be in the best interests of the Child that the Child live on the Gold Coast. Even if the Child lives on the Gold Coast the Father is unable to spend equal time with the Child by reason of the Father’s employment. The Father’s primary proposal recognises this situation, and, assuming that the Mother returns to the Gold Coast, provides for each parent to spend substantial and significant time with the Child. This is the only reasonably practicable course assuming both Father and Mother reside on the Gold Coast. If the Mother does not return to the Gold Coast then the Child will live with the Father and be unable to spend substantial and significant time with the Mother for reasons already canvassed in these reasons for judgment associated with the distance between the places of residence of the Father and Mother.
In all the circumstances, the Court will make interim parenting orders essentially in terms of the parenting orders sought by the Father being orders 1 to 6 of the Interim Orders sought by the Father.
Transfer of proceedings
There will be no order for transfer of proceedings out of the Brisbane Registry to the Dandenong Registry in Victoria. If the Mother returns to the Gold Coast such an order is unnecessary. If the Mother does not return to the Gold Coast transfer of proceedings to Dandenong would require the Father, and his witnesses, and the Child, to travel to Melbourne for any hearing. Alternatively, for the duration of the hearing, the Child would have to be left in care on the Gold Coast with persons other than those with whom he is most familiar. That is not in the best interests of the Child. That is a good reason not to transfer proceedings out of the Court’s Brisbane Registry.
In any event, the application having been made in the Brisbane Registry, there is no other compelling reason, having particular regard to the other orders to be made by the Court, and to the location of witnesses and the availability of video and telephone link technology: see Goodall v Nationwide News Pty Limited [2007] FMCA 218 at paras 23-43 and 46-49 per Lucev FM, for the proceedings to be transferred.
Property settlement
If the Mother returns to the Gold Coast, there is no necessity for an interim property settlement as sought by her having regard to the proximity of a final hearing. In any event, the purchases that she evinces an intention to make in regard to the Child’s needs relate to items which could probably be transferred on any change over (save for a bed). If the Mother does not return to the Gold Coast then because of the terms of the orders the Court will make there will be no need to purchase those items. In any event, it seems doubtful that the Father presently has the means to pay the lump sum sought by the Mother.
Movement restraint
The Father seeks an injunction restraining movement of the child out of the Commonwealth, and orders for delivery up of the Child’s passport and placement of the Child’s name on the Airport Watch List.
The Father says that the Mother took the Child’s passport with her when she unilaterally relocated to Melbourne, that the Maternal Grandfather “owns property overseas and is quite wealthy”, and that he is “concerned that the Mother will leave …. Australia”. By inference, the Court assumes this means that the Mother will leave together with the Child.
The Mother says she has no intention of relocating overseas on a permanent basis, that all of her family is in Melbourne (save on the evidence, the Mother’s Sister), and that she has not made any threats to leave Australia. The Mother considers it appropriate that there be an order that neither the Father nor the Mother travel overseas with the Child, without informing the other.
In all of the circumstances there is a lack of material evidence warranting the granting of an injunction or any orders concerning these matters.
Summary
For the reasons outlined above there will be:
a)Interim parenting orders in the terms sought by the Father’s proposed interim orders 1-6;
b)no order to transfer proceedings out of the Court’s Brisbane Registry;
c)no interim order in relation to property settlement; and
d)no injunction restraining the Child’s movement, and no orders for the delivery up of the Child’s passport, or for the placing of the Child’s name on the Airport Watch List.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: Maryna Hewitt
Date: 17 May 2007
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