Graves and Laguna

[2018] FCCA 2884

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRAVES & LAGUNA [2018] FCCA 2884

Catchwords:
FAMILY LAW – Parenting – relocation – application of mother.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC

Cases cited:

AMS & AIF [1999] HCA 26

U & U [2002] HCA 36
Morgan & Miles [2007] FamCA 1230

Applicant: MR GRAVES

Respondent: MS LAGUNA

File Number: MLC 12970 of 2017

Judgment of: Judge Williams

Hearing date: 1 October 2018

Date of Last Submission: 1 October 2018

Delivered at: Melbourne

Delivered on: 4 October 2018

REPRESENTATION

Counsel for the Applicant: Mr Eidelson of Counsel

Solicitors for the Applicant: Lampe Family Lawyers

Counsel for the Respondent: Mr Stanley of Counsel

Solicitors for the Respondent: Marcou & Associates Pty Ltd

ORDERS

1. Within four weeks of the date of this order, the mother return with the children to Melbourne.

2. Upon the children’s return to Melbourne:

   (a)the mother and the father forthwith do all acts and things are to re-enrol the children in School 1 primary school;

   (b)the father spend time with the children in accordance with the consent orders made 19 December 2017.

3. The matter be adjourned to Federal Circuit Court of Australia in Melbourne on 20 May 2019 at 10.00am for Final Hearing, with an estimated hearing time of three (3) days in relation to the mother’s application to relocate to Town A (“the Final Hearing”).

Family Report

1. Pursuant to s 62G(2) of the Family Law Act1975, the parties and the said children [X] born 2008 and [Y] born 2009 attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report to be given to the Court no less than 30 days before the hearing date.

2. The Family Report to deal with the following matters:

   (a)any views expressed by the children and any factors (such as the children’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 ss. 60CC, 61DA and 65DAA of the Family Law Act 1975;

   (c)the likely effect on the children if the Court were to make Orders in terms of the father’s/mother’s proposed orders;

   (d)any other matters that the Family Consultant considers important to the welfare or best interests of the children; and

3. The parties send copies of all of their Court documents to the Family Consultant within 7 days of being requested to do so by the Family Consultant.

4. If a party is not represented by a lawyer, then within 7 days of being notified of the Family Consultant that party do deliver or cause to be delivered to the Family Consultant copies of the following documents:

   (a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the current proceedings;

   (b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the current proceedings; and

   (c)any family violence intervention or restraining Orders currently in force.

5. For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer.

6. The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.

7. If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyer to) notify the relevant Family Consultant of his or her need to attend Court no less than 7 days prior to the Final Hearing.

8. 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.

9. 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 children 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.

10. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

    Trial Directions

11. The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court) AND:

    (a)The applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 21 days prior to the trial; and

    (b)The respondent electronically file and serve any further affidavits to be relied upon by the respondent at the final hearing not later than 14 days prior to the trial; and

12. AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:

    (a)the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or

    (b)the party has first obtained leave of the court.

    Outline of Case

13. Not later than 4.00pm two business days prior to the trial all parties do electronically file and serve an Outline of Case Document (not exceeding 5 pages) including the following:

    (a)a list of the material relied upon;

    (b)a brief chronology listing significant events;

    (c)a list of the significant factual issues requiring determination;

    (d)a list of contentions with respect to each of the considerations relevant to determining the best interests of the children (s.60cc factors);

    (e)a list of contentions relevant to the operation of s.65DAA;

    (f)a list of any other contentions relevant to the decision; and

    (g)the actual orders sought.

14. There be orders, in terms of the Minute of Orders and dated 4 October 2018 (“the Minute”) and the Minute be placed upon the court file and marked Exhibit “A”.

15. All extant interim applications be dismissed.

16. Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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.

B.At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

C.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.

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

Exhibit ‘A’

1. That on or before 5 November 2018 the mother cause the children [X] born 2008 and [Y] born 2009 to return to reside within reasonable proximity to the School 1 Primary School.

2. That upon compliance with order 1 above the mother and father do all things necessary to re-enrol the children in School 1 Primary School.

3. That pending compliance with order 1 above, the children spend time with the father each alternate weekend commencing 12 October 2018 from 7PM Friday until 5PM Sunday.

4. That for the purposes of time in order 3 the mother deliver the children to Suburb A McDonalds at the commencement to and collect the children from Suburb B McDonalds at the conclusion of the children’s time with the father.

5. That upon compliance with order 1 above the children resume spending time with the father in accordance with the orders made 19 December 2017.

6. That the parents and the children attend upon a Family Consultant for the purposes of a Family Report  to address the mother’s application to relocate with the children to Town A.

7. The matter be listed for Final Hearing on 20 May 2019 with an estimated duration of 2 days.

8. Usual directions for trial.

9. Sections 65 DA(2) and 62B apply.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 12970 of 2017

MR GRAVES

Applicant

And

MS LAGUNA

Respondent

REASONS FOR JUDGMENT

1. This is an application in which the father seeks for the mother to return the children, [X] born 2008 (“[X]”) and [Y] born 2009 (“[Y]”), from Town A to Melbourne, so that the children spend time with their father in accordance with the consent orders made by the parties on 19 December 2017. 

Background

1. The applicant father is aged 41 and is unemployed. He lives with his mother in Suburb B, Victoria. 

2. The mother is aged 36, and is engaged in home duties caring for [X] and [Y]. As from 20 August 2018 the mother has lived in Town A, approximately 300 km from her previous residence in Suburb C, Victoria. 

3. The Mother and Father commenced cohabitation in 1999 and separated in February 2016, a relationship of 17 years.

4. On 19 December 2017, final parenting orders were made by consent providing for the parents to have equal shared parental responsibility, for the children  to live with the mother, and to spend time with their father :

   i)Each alternate Friday from the conclusion of school until 5PM Sunday;

   ii)Every alternate Thursday from the conclusion of school until 7 PM;

   iii)In the off-week Monday from the conclusion of school until 7 PM;

   iv)Half of the school holidays.

5. Both parties agree that the children’s time with their father proceeded relatively smoothly until 20 April 2018, when there was an altercation between the father and the wife’s new husband, Mr R.

6. On 25 July 2018, the father filed an Application – Contravention alleging various contraventions of the final orders made 19 December 2017.

7. On or about 20 August 2018, the mother relocated the children’s residence to Town A.

8. On 24 August 2018, the husband filed the current Initiating Application which was listed on 4 September 2018.

9. The Application - Contravention was listed on 27 August 2018, before Registrar Riddiford and the application was resolved by consent. 

10. On 27 August 2018, the parties agreed to a variation of the final orders made 19 December 2017, to restrain the mother from:

    i)attending the children’s school any time within a 15 minute period prior to the father collecting the children from school; and

    ii)permitting her husband to do the same.

11. On 4 September 2018, the father was represented by counsel and the mother appeared in person.  On that day I made orders providing for the mother to file and serve her documentation by 27 September 2018 and adjourning the matter for hearing to 1 October 2018.

12. The parties also agreed to orders being made by consent providing for the children to spend time with their father during the September 2018 holidays and for the mother to effect all changeovers.

Documents relied on by the parties

1. The father relied on the following documents:

   a)Initiating Application filed 24 August 2018;

   b)His Affidavit sworn and filed 24 August 2018;

   c)His Affidavit sworn and filed 25 July 2018 (in support of the Contravention - Application);

   d)Notice of Risk filed 24 August 2018.

2. The mother relied on the following documents:

   a)Response filed 26 September 2018;

   b)Affidavit of the mother affirmed and filed on 26 September 2018;

   c)Notice of Risk filed 20 the September 2018. 

Proposals of the parties

1. The father now seeks orders compelling the mother to return the children’s residence to the Melbourne metropolitan area and his time to resume in accordance with the orders of 19 December 2017, as amended on 27 August 2018.

2. The mother seeks orders enabling her to remain in Town A with the children and for the children to spend each alternate weekend with the father in Melbourne.

3. Her initial proposal for interim orders, as set out in her Response filed 26 September 2018, was for the children to spend each alternate weekend with their father, from after school Friday until 5 PM Sunday, and that take changeover take place at the Town B train station, or as otherwise agreed by the parties.  Apparently Town B is roughly halfway between Melbourne and Town A. 

4. During submissions, counsel for the mother submitted that she had amended her proposal for change over, and that she was prepared to undertake all of the travel to enable the children to see their father each alternate weekend.

5. The mother also seeks orders for a mental health assessment of the father, the father attend a men’s behavioural change program, complete a parenting orders program and various restraints in relation to the father’s behaviour.

Agreed Facts

1. The agreed facts are as follows:

   i)Both children have Autism Spectrum Disorder, although high functioning, and associated health issues;

   ii)Both children attended School 1 primary school from the commencement of their schooling until 20 August 2018;

   iii)The children attended a specialist psychologist Ms C, for many years in Suburb A, together with other local health practitioners, including a paediatrician;

   iv)From December 2017 until 20 April 2018 the children spent time with their father substantially in accordance with the consent orders made 19 December 2017;

   v)On 20 April 2018, there was an altercation at the children’s school between the father and the mother’s new husband Mr R;

   vi)Subsequent to 20 April 2018, the father did not spend time with the children on Thursdays and Mondays as provided by the December 2017 orders;

   vii)On 20 June 2018, the mother informed the father that she intended to relocate with the children to Town A;

   viii)On 19 July 2018, the father’s solicitor forwarded a letter to the mother advising her that the father did not consent to the children relocating to Town A;

   ix)The mother unilaterally arranged for the children to leave School 1 primary school and be enrolled in School 2 primary school, Town A;

   x)The mother did not advise the father of her intention to cancel the children’s enrolment at School 1 and enrol them in School 2 and the father did not consent;

   xi)On 27 August 2018, to resolve the father’s application for contravention, the mother consented to a variation of the December 2017 orders, knowing that she had already relocated;

   xii)On 30 August 2018, the mother forwarded an email to the father’s solicitor as follows: (Exhibit F1):

   As the children’s primary carer, I don’t require your client’s permission to relocate for my family’s well-being or job prospects.

   If your client wishes to see our children for his visitation and Father’s Day, he would not have an issue organising or meeting me halfway for this to happen.

   xiii)The mother’s relocation of the children could not be considered a relocation nor in circumstances of an emergency.

Facts in dispute

1. The facts in dispute are as follows:

   i)Whether the father or the mother’s new husband was the instigator of the incident on 20 April 2018;

   ii)Whether the children should remain in Town A or return to Suburb A/Melbourne.

2. This is an interim hearing and it is not possible to make findings of fact where there are issues of disputed fact and credit.

The applicable law

1. Part VII of the Family Law Act 1975 sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the court must regard the best interests of the child as a paramount consideration when making parenting orders. Section 60CC of the Act sets out how a court is to determine what is in a child’s best interests.

2. Section 60CC(1) of the Act provides:

   Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

3. The matters set out s.60CC(2) are primary considerations and the matters set out in s.60CC(3) are additional considerations.

4. Section 60CC(2) of the Act provides:

   The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence.

5. Section 60CC(2)(a) provides that in applying the considerations set out in sub-section (2) the court is to give greater weight to the consideration set out in s.60CC(2)(b).

6. In order to determine the child’s best interests, I must also take into account the additional considerations as set out in s.60CC(3) of the Act. Additionally, in applying the statutory pathway, I must also have regard to the mother’s right to freedom of movement and that must also be considered and balance when determining the best interests of the child. In that regard I refer to AMS & AIF,[1] and U & U.[2]

   [1] AMS & AIF [1999] HCA 26.

   [2] U & U [2002] HCA 36.

First primary consideration

1. I will consider the first primary consideration, namely the children having a meaningful relationship with each of their parents.

2. Neither party made any direct submissions about the desirability of the children maintaining a meaningful relationship with their father.

3. I can however infer from the proposals of each party, that they are of the view that the children should have a relationship with their father, as each of the proposals provide at least for the children to spend alternate weekends with their father and substantial time during school holidays.

4. The difference in the proposals of each of the parties is whether the children should spend time with their father during the week, as contemplated by the December 2017 orders or whether his time should be restricted to alternate weekends.

Second primary consideration

1. I will now turn to the second primary consideration.

2. Both parents have filed a Notice of Risk.  The father filed a Notice of Risk on 24 August 2008.  It does not assert any allegations of risk pertaining to the children.

3. The mother has filed two Notices of Risk, one in the proceedings which were commenced by her on 12 December 2017 and the second Notice of Risk, in this application was filed on 26 September 2018.

4. The first Notice of Risk alleges that the children are at risk of harm due to the father’s refusal to return the children to the mother on 3 December 2017.  She also asserts that the children have not been provided with their medication nor attended school or psychological appointments.  She concluded that the children and the mother were being caused emotional abuse by the father.

5. The second Notice of Risk filed by the mother alleges that the children are at risk of abuse as a result of the incident of 20 April 2018 at school.  She also refers to the refusal of the father to return the children to her on 3 December 2017.  In relation to family violence she refers to the father living with anxiety, depression, PTSD, and his suicidal ideation in February 2016 at the conclusion of the relationship. It also refers to the father’s use of marijuana during the parties’ relationship.  She alleges that the father suffers from parental incapacity, including lack of insight because he refused to return the children to the mother in December 2017.

1. The mother’s affidavit filed 26 September 2008, deals with many historical concerns she allegedly has about the father.  It also refers to the events of 20 April 2018, where she alleges that father was responsible for assaulting her husband.

2. Her concerns about the father’s mental health are referred to in paragraph 41 of her affidavit. All her concerns predate the orders of 19 December 2017, except the incident of April 2018.  She does not provide any particulars about how she now alleges that the father poses a risk to the children, notwithstanding her consent to the orders of 19 December 2017, and the subsequent variation on 27 August 2018.

3. The evidence before me does not support the proposition that the children are likely to be at risk of harm in the care of either parent. 

4. I will now address the relevant secondary considerations as set out in s.60CC(3).

Section 60CC(3)(a), any views expressed by the child

1. There was no evidence from either party of any views expressed by the children.  The only vague reference to the two children’s views about any particular issue was the mother’s statement in paragraph 27 of her affidavit that the children are not comfortable or safe at School 1 primary school.

Section 60CC(3)(b), the nature of the relationship of the child with each of his parents and other persons.

1. As previously referred to, there was no evidence provided by either party that the children have anything other than a loving and meaningful relationship with both parents.

Section 60CC(3)(c), the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child and spend time with the child and communicate with the child.

1. There was an order made by consent on 19 December 2017, that both parents have equal shared parental responsibility for the children.  At the time those orders were made both parties were represented by counsel.  Indeed, on that day the mother was represented by her current counsel who is a well-regarded and experienced family law barrister.

2. There was no evidence that the father had failed to take the opportunity to participate in decision making for the children. To the contrary, the evidence was focused on the mother’s unilateral decisions to:

   a)Relocate to Town A without the father’s consent;

   b)Cancel the children’s enrolment at the School 1 primary school;

   c)Re-enrol the children at School 2 primary school.

3. Obviously the mother did not take the opportunity to consult or invite the father to participate in decisions pertaining to the children’s long-term welfare, specifically, the location of where they would be residing and which school they would be attending.

4. I have no doubt that the mother was well aware of her legal obligations to consult with the father in relation to the living and educational arrangements for the children, however she chose not to do so.

Section 60CC(3)(ca), the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

1. The mother is primarily responsible for the financial support of the children.  The father does not pay any meaningful child support and has not done so for a number of years. He has not been employed for many years.

Section 60CC(3)(d), the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from (i) either of his or her parents or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

1. The orders which the mother proposes will have a substantial impact on the children.  Their home will be located some 300 km from their father’s home, which will involve in excess of three hours travel each way, for them to spend time with him each alternate weekend.  The father’s case is that this travel is excessive for the children.

2. The father additionally submits that the children, in the context of their autism diagnosis, thrive on routine and stability and do not accept nor react well to change.  The mother’s own evidence, at paragraph 9 of her affidavit, is that the children live with deficits in social communication and have difficulty in social situations such as making friends, because other children think they are odd.

3. Despite this she has chosen to unilaterally change their long-term and established schooling routine and friends. She now asserts that after attending a new school for a period of three or four weeks the children have settled in well and love attending the new school.

4. The father’s counsel submitted:

   i)The children’s particular needs arising from the autism, mitigate against a unilateral change in circumstances;

   ii)The children should be forthwith returned to the school, which they have both attended since the commencement of their schooling. [X] has attended the School 1 primary school for nearly six years and [Y] has attended for nearly four years;

   iii)They should not be removed from their secure and stable background, put into a new situation and be expected to cope appropriately;

   iv)The mother’s evidence about relocation was minimal and was not supported by any corroborative material;

   v)Many of the issues raised by her were historical in nature.

5. The mother’s counsel submitted:

   i)The relocation was desirable for the children as there have been a number of incidents at the previous primary school which unsettled and upset the children;

   ii)Her proposal for the children to spend time with the father on alternate weekends, was the least worst option available;

   iii)The children had settled well into their new school;

   iv)Because the father did not have a drivers licence, the train trip to the father’s home each alternate Friday was approximately 2 ½ hours. It was conceded that since the events of April 2018, the paternal grandmother had driven the children which resulted in a drive of 45 minutes;

   v)The mother and the children are wholly dependent on her husband for financial support, and there are better job opportunities in Town A. This is further discussed later in these reasons.

Section 60CC(3)(e), the practical difficulty and expense of the child spending time with and communicating with a parent.

1. If the children were to remain in Town A, there would be substantial practical difficulty and possibly also expense incurred to ensure the children continue to have a meaningful relationship with their father.

2. The mother’s proposal acknowledges that it would not be possible to comply with the December 2017 orders for the children to spend time mid-week with their father.  She submits that the children’s relationship would be adequately maintained if time were to take place each alternate weekend and during school holidays.

3. As referred to earlier in these reasons, her initial proposal for transporting the children was that the parents would meet halfway at Town B.  The father does not drive and he would need to take public transport to a changeover venue.  There was no evidence about the availability and timetable of trains to Town B which would enable time to take place.  During submissions the mother’s counsel advised that the amended proposal was that the mother would do all of the driving at the commencement and conclusion of the children’s time with their father.

4. The mother’s amended proposal means that the children would sit in a car after the conclusion of school each alternate Friday to travel upwards of 300 km to their father’s home.  This experience would be repeated by the children on Sunday evening after being collected from their father’s home.  The distance and time of travel would not enable the children to spend time with their father strictly in accordance with the alternate weekend provisions of the 19 December 2017 orders.

5. The mother’s evidence did not address the likely effect on the children of being required to travel in excess of 600 km each alternate weekend and the possible detrimental impact of this travel on the children’s enthusiasm and capacity to spend time with their father in Melbourne.

6. Absent further evidence and professional assessment of the likely effect of such travel on two autistic children, and their likely ability to cope with it, I do not consider it appropriate that the children should travel such enormous distances.

Section 60CC(3)(f), the capacity of each of the child’s parents and any other person to provide for the needs of the child.

1. The mother has been able to provide for the needs of both children to date and she has been their primary carer. I accept her evidence that she has been primarily responsible for the children’s attendance on medical and associated practitioners.  However, there was no evidence that the father was incapable of caring for the children and providing for their needs, and any alternative suggestion at this stage would be contrary to the orders consented to by the mother in December 2017 .

Section 60CC(3) (g) surety, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant

1. As previously referred to both children have Autism Spectrum Disorder, although high functioning, together with associated health problems.

2. The mother coordinated and was responsible for the children’s treatment and appointments with their medical and allied health professionals.

3. The relevant health practitioners were located in the Suburb A area.  Annexure 2 to the mother’s affidavit is a letter from their treating psychologist, Ms C dated 5 December 2017.  That letter evidences that Ms C had been involved with both children for many years.  She details her treatment of both children in her letter.

4. Paragraph 35 (d) of the wife’s affidavit states that apparently the children do not need to continue therapy with their long-standing psychologist, as the EQ program at the local primary school would suffice.

5. There was no corroborating evidence about whether the EQ program is an appropriate substitute for one-on-one psychological therapy which the children have had with Ms C.  The wife does not depose to any plans to re-enrol the children with a psychologist, or indeed even if there is an appropriate professional available in Town A.

6. There is no evidence about the children’s capacity to redevelop a rapport with a psychologist other than their long-standing psychologist, Ms C, or any effect on their development or psychological welfare, if they do not continue treatment with Ms C.

Section 60CC(3)(h)

1. This section is not relevant.

Section 60CC(3)(i), the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents.

1. I have referred to this factor elsewhere in these reasons.

Section 60CC(3)(j) and (k) family violence considerations.

1. This has been addressed when discussing s.60CC(2)(a).

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. This is an order which is made on an interim basis and whether or not the mother and the children will remain in Melbourne indefinitely will be a matter for trial.

Discussion

1. I have full confidence that the mother is an extremely capable and resilient woman who is devoted to the care of her children and provides the utmost standard of care for them.  I do not consider that her care of the children would be impacted or diminished in any significantly detrimental manner, if she were ordered to relocate to Victoria. The children would also be able to recommence their long-standing treatment/therapy with Ms C.

2. I fully understand that the prospect of being required to relocate the children to Victoria would be unpalatable to the mother and her preference is to remain with her new husband in Town A.  However, the mother does have family support and a social network in Victoria and she has lived here for many years.  This is not a case where the mother has lived in Melbourne for a short period of time and seeks to return to the place where she has spent the majority of her life and were most of her family members live.

3. It is apparent from the evidence that a significant motivating factor for the relocation was that the mother’s new husband has three children residing in Town A, and he wishes to be nearer to his children.

4. In terms of the proposed relocation, in determining whether or not the mother should be required to relocate to Melbourne with the children, I must balance her right to freedom of movement with the best interests of the children. I am cognisant of and have regard to the statements of Boland J in Morgan & Miles[3] and the comments at paragraph [88] in the context of a unilateral relocation by a parent. 

   [3] Morgan & Miles [2007] FamCA 1230.

5. Her Honour stated at [88]:

   [88] It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.

6. As agreed by both counsel, this matter cannot be seen as an emergency which would require relocation from Melbourne to Town A. The mother did not apparently consider any alternatives other than a surreptitious departure to Town A with the children.  I am also cognisant of and have regard to the requirement that I must consider appropriate alternatives before making a coercive order in this instance to compel the mother to return the children to Melbourne.

7. After having considered the limited evidence, I do not consider the proposals of the mother for the father to spend time with the children if she were to remain in Town A, are appropriate for two young children with Autism Spectrum Disorder.  The travel is unduly onerous and may possibly result in the children’s reluctance to see their father because they have to sit in a car for over 600 km each alternative weekend.

8. Additionally, I do not accept, in the absence of independent corroborative specialist evidence that two autistic children who have lived all of their lives in a particular environment, have family and social networks and have attended the same school for their primary education, should be unilaterally withdrawn from that environment.

Financial matters

1. I must also consider the practicalities of making an order which would require the mother to relocate the children back to Suburb A. I must consider the financial situation of both parents and the prospects of the mother obtaining appropriate accommodation for herself and the children in Suburb A.

2. Neither party filed a Financial Statement, nor addressed this issue at any length in their respective affidavits.

3. Paragraph 35 (e) of the mother’s affidavit refers to her current financial position.  She deposes that her husband was previously employed as a (occupation omitted) when the family lived in Suburb C, however, he is now training to be a (occupation omitted). This job will continue to pay more when his training is concluded.  She also deposes that she intends to look for part-time work once the family law proceedings are over.

4. Paragraphs 32 and paragraph 35 (a) of her affidavit refers to the family living in a rental property in Town A which is appropriate for their needs.  There is no evidence about the term of any lease of the premises, the rental payable or any other pertinent information.

5. There is no evidence about the income of the wife’s new husband and whether or not the family would be able to relinquish the lease in Town A and lease a property in Suburb A, where they had previously lived.

6. I am confident that the wife is a resourceful and devoted mother and that she would be able to secure suitable rental accommodation for herself and the children at the very least, in the Suburb A area, pending final determination of her application for relocation.  She is well familiar with the area, having lived there for many years, presumably in rental properties and she has immediate family living reasonably proximate.

7. In the circumstances I intend to make orders requiring the wife to relocate the children to Melbourne pending a determination at trial, which I intend to list with priority in May 2019.

I certify that the preceding eighty six (86) paragraphs are a true copy of the reasons for judgment of Judge Williams

Date: 4 October 2018