Halprin & Calligan
[2023] FedCFamC2F 199
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Halprin & Calligan [2023] FedCFamC2F 199
File number: PAC 498 of 2023 Judgment of: JUDGE MURDOCH Date of judgment: 27 February 2023 Catchwords: FAMILY LAW – INTERIM PARENTING – Where the mother unilaterally moved with the children from Sydney to Darwin some three days after the making of final consent orders – where the final consent orders entered into provide for the children to spend graduating time with the father in Sydney each alternate week – where the mother contends that it is in the children’s best interests to travel from Darwin to Sydney each alternate weekend to spend limited time with the father – where the father seeks that the children return to the Sydney Metropolitan area and the final orders otherwise remain in effect final– orders made requiring the children to reside in the Sydney Metropolitan area pending a final hearing of this matter. Legislation: Family Law Act 1975 ss 60B, 60CC, 60CC(2), 60CC(3), 65D(1) Cases cited: Adamson & Adamson [2014] FamCAFC 232
AMS v AIF [1999] HCA 26; (1999) 199 CLR 160
Asher & Wilkinson [2020] FamCAFC 44
Chapman and Palmer (1978) FLC 90-510; [1978] FamCA
86
Franklyn & Franklyn [2019] FamCAFC 256
Godfrey & Sanders [2007] FamCA 102
In the marriage of Fooks & McCarthy (1994) FLC 92-450
Kuan v Toh (2016) FLC 93-717
Malcolm & Monroe and Anor (2011) FLC 93-460
Mazorski v Albright (2007) 37 FamLR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Morgan & Miles (2007) 312 FLR 114
Oswald & Karrington [2016] FamCAFC 152
Sampson and Hartnett (No. 10) [2007] FamCA 1365
Sayer & Radcliffe & Anor (2012) 48 Fam LR 298
U v U [2002] HCA 36; (2002) 211 CLR 238
Vontek & Vontek [2017] FamCAFC 28
Division: Division 2 Family Law Number of paragraphs: 58 Date of hearing: 20 February 2023 Place: Parramatta Solicitor for the Applicant: Mr Graham Solicitor for the ICL: Ms Lam Solicitor for the Respondent: Mr Abraham ORDERS
PAC 498 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HALPRIN
Applicant
AND: MS CALLIGAN
Respondent
and INDEPENDENT CHILDREN’S LAWYER
order made by:
JUDGE MURDOCH
DATE OF ORDER:
27 February 2023
THE COURT ORDERS THAT, PENDING FURTHER ORDER:
1.That leave be granted to the father to file and press the application for interim and final parenting orders filed by him on 6 February 2023 pursuant to section 60 I of the Family Law Act 1975.
2.Forthwith and by no later than 5:00pm on 11 March 2023 the mother is to cause the children X born in 2010 and Y born in 2012 to return to and thereafter live in the Sydney metropolitan area.
3.That each party thereafter be restrained from removing the children’s residence more than 50 kilometres from the Sydney Metropolitan area.
4.That leave be granted to the father to relist the matter on 48 hours written notice to the court and the parties in the event he alleges that the mother has not complied with Order 2 above.
5.That the mother be restrained from changing the children’s surnames from “Halprin” to “Calligan” and from referring to the children by any other surname other than “Halprin” or allowing any other person to do so.
6.That the costs of each party and the Independent Children’s lawyer be reserved to the final hearing.
7.That all interim applications otherwise be dismissed.
8.That the substantive proceedings be listed for directions at 9:30 am on 17 March 2023, with all parties to attend such listing in person.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Halprin & Calligan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
These proceedings relate to the two children of the parties’ relationship:-
·X born in 2010 aged 12 years and 5 months of age; and
·Y born in 2012 aged 10 years and 8 months.
(“the children”).
On 23 January 2023 final parenting orders were made by me and by consent with respect to the children on the first listed day of a final three-day hearing. Both parties on this day were represented by counsel. The final orders provided that the children live with the mother who has sole parental responsibility for them subject to considering the father’s views. Further orders were further made that the children spend increasing graduated time with the father.
On 28 January 2023 the mother advised the father via email that she and the children had relocated to Darwin to live.
For determination by me is the interim application filed by the father on 3 February 2023 and listed on short notice seeking orders that the mother return the children to live in the Sydney Metropolitan area. The mother seeks that she be able to remain living with the children in Darwin. She does not seek to vary the current final orders made some four weeks ago. The mother’s position is that she will relocate back to the Sydney metropolitan area in the event orders are made that the children are to be returned to live in that area. The Independent Children’s Lawyer submits that in the first instance the court should order that the children be returned to live in the Sydney metropolitan area as sought by the father.
For the reasons that follow orders will be made that the children return to live in the Sydney metropolitan area pending a final determination of the proceedings.
BACKGROUND
On 23 January 2023 final Orders were made by consent as follows:-
1.That all previous parenting orders are discharged.
Parental Responsibility
2.That the mother have sole parental responsibility for the children [X] born [in] 2010 and [Y] born [in] 2012.
3.Save and except for an emergency, in exercising sole parental responsibility, the mother shall:
3.1 Notify the father of any long-term decisions she intends to make in relation to either of the children’s education, welfare, health or religion;
3.2 Allow the father at least 3 days to respond to her notification;
3.3 Take into account any response provided by the father;
3.4 Notify the father of her final decision.
Live and Spend Time With
4.That the children live with their mother.
5.That the children spend time with their father as agreed between the parents. Failing such agreement, Orders herein shall apply.
6.That commencing 2 February 2023 and for three months thereafter, the father spend time with the children for not less than 2 hours every second Thursday, supervised by a private supervision agency with the father to pay the costs of the supervision..
7.That following order 6, and upon [Ms B] and [Ms C] filing a written undertaking as to their knowledge and understanding of their role as a supervisor, for a period of 6 months, the father spend time with the children for up to 6 hours per fortnight, with the paternal aunt [Ms B] or [Ms C] to supervise this time.
8.Thereafter and until [Y] attains the age of 13 years, and subject to orders 10 - 15 herein, the father spend time with the children each alternate weekend from 10:00am until 4:00pm Saturday and 10:00am – 4:00pm Sunday.
9.That upon [Y] attaining the age of 13 years, the father spend time with the children each alternate weekend from 10:00am Saturday until 4:00pm Sunday.
10.That the father attend upon his treating GP for the purpose of obtaining a referral to enrol in and complete a drug and alcohol treatment program and upon completion provide evidence of his completion from the treating authority to the mother.
11.That prior to the commencement of order 8 herein, the father will do all acts and things to obtain an ‘Alcolimit’ breathalyser device and download the ‘Alcolimit’ application including photo capture option.
12.That 30 minutes prior to the father’s time with the children in accordance orders 8, 9, 16 and 18 herein, the father is to undertake an ‘Alcolimit’ test, take a screen shot of the result and send it to the mother, noting such screen shot must include him blowing into the device and identify a nil reading of alcohol. The father is to undertake a further ‘Alcolimit’ test identifying a nil reading of alcohol twice in every 12-hour period whilst the children are in his care.
13.That in the event the father has a non-complying ‘Alcolimit’ test:
13.1 the father’s time with the children is suspended for 24 hours; and
13.2. the mother will forthwith collect the children from the father.
14.In the event that the father has two consecutive non complying ‘Alcolimit’ tests in a 24 hour period, the father’s time with the children is suspended for a period of 14 days.
15.That prior to the father’s time resuming with the children following a non-complying ‘Alcolimit’ test, the father must produce a complying ‘Alcolimit’ test no less than 30 minutes prior to the commencement of time with the children.
Holidays and Special Occasions
16.Subject to the conditions in orders 10 and 12 above, the children shall spend the following special occasion times with each parent:
16.1. In 2023, with the father from 10:00am until 4:00pm Christmas Eve;
16.2 In 2024, with the father from 10:00am until 4:00pm Christmas Eve;
16.3. From 2025, with the Mother from 9:00am Christmas Eve until 12:00 noon Christmas Day and with the Father from 12:00 noon Christmas Day until 5:00pm Boxing Day in odd numbered years thereafter;
16.4. From 2026, with the Father from 9:00am Christmas Eve until 12:00 noon Christmas Day and with the Mother from 12:00 noon Christmas Day until 5:00pm Boxing Day in even numbered years thereafter;
16.5. With the father from 9:00am to 5:00pm on Father’s Day;
16.6. That in the event that the children are not already spending time with the father on the children’s birthdays pursuant to these Orders, the children are to spend time with the father as follows:
16.6.1. From after school until 7.00pm if the birthday falls on a school day; and
16.6.2. From 2.00pm to 7.00pm if the birthday falls on a non-school day.
16.7. That in the event that the children are not already spending time with the mother on the children’s birthdays pursuant to these Orders, the children are to spend time with the mother as follows:
16.7.1. From after school until 7.00pm if the birthday falls on a school day; and
16.7.2. From 2.00pm to 7.00pm if the birthday falls on a non-school day.
17.That for the purpose of changeover during when not otherwise at school, changeover will occur at the mother’s home.
18.That the father’s time in the school holiday periods shall be as agreed or failing agreement as follows:
18.1.1 For 2 consecutive nights as agreed between the parents and failing agreement from 9:00am Monday to 9:00am Wednesday in the first week of the school holidays at the conclusion of term 1 2025;
18.1.2 For 3 consecutive nights as agreed between the parents and failing agreement from 9:00am Monday until 9:00am Thursday in the first week of the school holidays at the conclusion of term 2 2025;
18.1.3 For 4 consecutive nights as agreed between the parents and failing agreement from 9:00am Monday until 9:00am Friday in the first week of the school holidays at the conclusion of term 3 2025;
18.1.4 For 2 blocks of 4 consecutive nights in the December 2025 / January 2026 school holidays as agreed between the parents and failing agreement from 9:00am 3 January until 9:00am 7 January and from 9:00am 17 January until 9:00am 21 January;
18.1.5 For half of all school holiday periods commencing at the conclusion of term 1 2026 as agreed between the parents and failing agreement, with the Father for the first half of each school holiday period in odd years and the Mother for the first half in each school holiday period in even years.
Communication between Parents
19.Save and except for emergencies, the Mother and the Father shall communicate with one another via email.
20.To facilitate Order 19 herein, each parent shall keep the other advised of their contact numbers/email addresses.
Other matters
21.The Mother and the Father shall ensure that both parents are listed as an emergency contact at the Children’s school, day care, or any other place of extracurricular activity such that in the event of an emergency both parents are contacted.
22.The Mother and the Father shall ensure that the other parent is informed as soon as is reasonably practical of the following:
22.1. any illness, medical emergency, hospitalisation, or incident suffered by the Children or either of them;
22.2. the name and contact details (including address and phone number) of any treating medical practitioner, hospital authority or dental practitioner which has seen or treated the Children and that parent shall inform that medical professional that the other parent has a right to information on the children’s injuries and any treatment required;
22.3. of any medication prescribed by a treating medical professional;
22.4. of any change in their residential address but within 72 hours of such change taking effect.
23.That both parents are entitled to receive reports, photographs, order forms, newsletters and all other material usually provided to parents from the Children’s school/s and both parents are entitled to attend extra-curricular activities and school events to which parents are invited.
Restraints
24.The father be restrained from consuming alcohol 24 hours prior to spending time with the children and while spending time with the children.
25.Each party is hereby restrained from abusing, denigrating, belittling, rebuking or speaking poorly of the other party or any other member of that other party’s household or extended family or friends in the presence or hearing of the Children.
26.Each party is restrained from allowing the Children to remain in the presence or hearing of a third party who commences to abuse, denigrate, belittle, rebuke or speak poorly of the other parent, their household members, extended family or friends.
27.The restraints in Orders 25 and 26 above apply also to posts on social media designed to abuse, denigrate, belittle, rebuke or reflect poorly on the other party, members of their household, extended family or friends.
28.Each party is hereby restrained from discussing these parenting proceedings or any parenting dispute or disagreement between the parties in the presence or hearing of the Children, or from allowing the Children to be present or in the hearing of such discussion initiated by any third party.
Travel with the children
29.That both parents are entitled to travel interstate with the Children provided that this travel does not impact upon the time the Children are ordinarily to spend with the other parent pursuant to these Orders.
30.That both parents are permitted to take the Children on international travel outside of the Commonwealth of Australia provided that it does not interfere with the other parent’s time with the Children, and that the travelling parent will provide the other parent with at least four weeks written notice specifying the following:
30.1. The dates and times of departure and return;
30.2. The details of travel including airline, flight number, ship name and shipping company details and port of departure and arrival;
30.3. Contact details for the Children during the course of travel;
30.4. The intended destination(s) and itinerary;
30.5. Proof of the purchase of return airfare or shipping ticket in the Children’s names.
31.The Mother and the Father are to do all acts and sign all instruments necessary to ensure the Children both have valid Australian passports at all times, including each parent being responsible for paying 50% of the fee responsible for the obtaining of the Children’s passports.
32.That the Mother shall at all times when the Children are not travelling hold the passports for each of the children.
33.That in the event the father notifies the mother of his intention to travel overseas and complies with order 30, the mother shall within 48 hours of such notification, provide the passport/s to the father. The father shall return the passport/s to the mother within 3 days of the children’s return to Australia.
Telephone Communication
34.That the father may have telephone/Facetime communication with the children each Tuesday between 6:00pm – 6:30pm by calling [X]’s phone.
35.That the mother shall facilitate communication between the children and the father in accordance with the wishes of the children.
(“the final consent orders”).
It is uncontested that at the time of the making of the final consent orders the mother lived with the children in the home of the maternal grandmother in Town D, New South Wales. The mother was engaged in paid employment as a Manager. The father lived in Suburb E, New South Wales. The parties lived approximately seven kilometres apart.
Agreement was subsequently reached between the parties that the children would spend supervised time with the father in accordance with order 6 of the final consent orders each alternate Saturday rather than a Thursday. The father no longer consents to this change in date.
The father deposes that when speaking with Y the day after the final consent orders were made Y said to him “ We are going to Darwin to watch the Event P for Australia Day”.
On 28 January 2023 the father forwarded an email to the mother in which he asked, amongst other things, the day that the mother would be returning the children from Darwin.
On this same date the mother’s reply to the father’s email included the following:
We have decided we will, move to Darwin.
A situation came up whilst living at my parents and it’s not an environment that I wanted the children around, and therefore we were no longer able to stay there full time.
Please note that this move will not affect your visits with the children. I will have them back as per the court orders.
I will be looking at enrolling the kids in school on Monday and touch base with you then.
I recently purchased a house for holiday rentals so we could come and stay when it was not in use.
We will move into this house!
As per orders to notify you of an address change, our new address will be [F Street, Suburb G, N.T.]
Thank you for your understanding in this matter.
[Ms Calligan].
The father advised via return email on the same day that he was not happy with the mother’s decision and requested an explanation as to what had happened to the children whilst in the maternal grandparents’ care.
The mother’s reply was as follows:
The main reason for the move was the kids are upset with mums drinking, this was bringing up bad memories of their life when they were around you and your drinking habits. Therefore, I put their best interests first and took them out of that situation.
I understand you’re not happy. The kids are happy with this decision and very excited.
[Ms Calligan].
The father by return email requested an explanation from the mother as to why she had removed the children away from the father and the children’s extended family and friends rather than just moving them away from the maternal grandparents.
The mother’s response was an email later that same day stating simply:
We are in Darwin!
On this same day the father voiced his concerns as to how the new situation was going to work with the children flying six hours each way per fortnight and further asking the mother if she had permanently moved to Darwin already.
On 30 January 2023 the mother advised the father by way of email of her intention to enrol X in H School and Y into J School.
The father filed an Initiating Application seeking both interim and final orders on 3 February 2023. The father sought that the interim application be dealt with on an urgent basis. On the same date the father paid the sum of $452 to K Contact Centre for the two hours supervised visit scheduled on 4 February 2023 as agreed between the parties.
The children did not spend time with the father on 4 February 2023. The mother’s affidavit is silent as to why this time did not take place.
The matter came before a Registrar on 6 February 2023 and orders were made listing the matter before me on 7 February 2023 with directions made for the mother to file and serve her material in response to the father’s application by no later than 3:00pm on 6 February 2023.
The mother did not comply with the directions to file her material. On 7 February 2023 directions were made listing the father’s application for an interim hearing on 13 February 2023 and the time for compliance by the mother to file her material in response was extended to 2:00pm on 10 February 2023.
At the listing of the interim hearing on 13 February 2023 the mother had still not filed her material as directed on two occasions. The mother sought an adjournment to obtain legal advice and to file her material in response. On this date the interim hearing was adjourned to 20 February 2023 and the time for the mother to file her material in response was again extended to 4:00pm on 16 February 2023.
The children spent supervised time with the father on 18 February 2023. The children flew from Darwin leaving at approximately midnight to spend the time with the father.
THE COMPETING APPLICATIONS
The father seeks orders that:-
·The mother return the children to live in the Sydney Metropolitan area.
·Each party be restrained from removing the children, whether on holidays or otherwise, more than 50 km from the Sydney metropolitan area.
·By way of an oral application that an injunctive order be made restraining the parties from changing the children’s surnames from “Halprin”.
The mother seeks that she be able to remain living with the children in Darwin but that otherwise the final consent orders remain in effect. Thus the children will be travelling from Darwin to Sydney each fortnight and on special occasions to spend time with the father.
The mother advised the court that she will relocate back to the Sydney metropolitan area in the event orders are made that the children are to be returned to live in that area.
The Independent Children’s Lawyer submits that in the first instance the court should order that the children be returned to live in the Sydney metropolitan area. In the event the court determines that the children are to remain living in Darwin pending a final hearing, the Independent Children’s Lawyer proposes that the final consent orders be varied so that the children travel to Sydney once a month to spend time with the father.
THE EVIDENCE
The father deposes that:-
·He had no knowledge of the mother intending to move permanently to the Darwin area when he consented to the final parenting orders.
·He has made inquiries of the airlines that commonly fly between Sydney and Darwin being Jetstar, Virgin and Qantas. The father deposes given their ages the children will need to be accompanied by a parent or legal guardian if they were to travel between Darwin and Sydney.
·The father anticipates that the total travel time for the children to fly to and from Darwin would be at least eight hours each way at an average cost of $800. This estimation incorporates the flight time, the travel to and from the airport and the requirement for the children to be at the airport one and a half hours prior to any flight. The father deposes that he is unable to afford the flight costs of travelling to and from Darwin on a regular basis.
·Annexed to the father’s affidavit is a notification from L Real Estate recording that the property that the mother has purchased and is now living in with the children was sold on 20 January 2023 – just three days prior to the making of the final parenting orders by consent.
·During a telephone conversation with the children on 7 February 2023, X told the father that the mother had told her that the father is trying to bring the children back to Sydney.
·The mother travelled with the children to Darwin on a few occasions subsequent to June 2022 including during Christmas 2022 for a holiday. In 2022 the children made mention a few times to the father on the telephone about “mum’s friend from Darwin namely ‘Mr M’.” The mother has not disclosed that she is in a current relationship.
·When the children spent time with the father on 18 February 2023 they had flown from Darwin leaving at approximately midnight. The children had red eyes and were clearly tired.
·Y advised the father on 14 February 2023 that he had to stop the phone call as he had to go and speak with his counsellor. The mother had not advised the father that Y was seeing a counsellor namely Ms N prior to her filing her affidavit in these proceedings, despite Y attending upon her since November 2021. This was not disclosed by the mother in the prior proceedings.
·The mother referred to the children in her most recent affidavit by the name of “Calligan” and the father has received notice from the mother that she intends to change the children’s names. The father does not consent to this course of action.
The mother deposes that:-
·She was subject to family violence at the hands of the father.
·She has grave concerns about the safety of the children.
·Y has been undergoing intensive ongoing counselling since November 2021.
·She remains fearful that unless the children are in the presence of adequate and proper supervision the father will continue to abuse them if they are in his care.
·During December 2020 to she purchased a holiday house in Darwin as an investment property for herself and the children with the intention of letting the house as a short term holiday rental accommodation (“the Darwin property.”)
·The Darwin property is encumbered by an investment home loan. The purchase of the property settled on 20 January 2023.
·At the time of the final consent orders being made on 23 January 2023 she had no intention to relocate to Darwin.
·At approximately 7:00pm on 24 January 2023 the maternal grandmother approached her in front of the children and began shouting to her that she owed the maternal grandmother money. The mother could smell alcohol on the maternal grandmother’s breath. Both the children became upset and were “triggered by the event.” That evening the mother arranged for the children and herself to stay at the home of her brother and sister-in-law at Town O, New South Wales.
·At approximately 8:00am on 25 January 2023 “in the morning the children and myself decide to take a holiday to Darwin, with the intention of seeing the Event P.”
·At approximately 10:00am on 25 January 2023 the mother arrived at the maternal grandmother’s home and commenced to pack in preparation of the trip to Darwin.
·At approximately 12:00pm on this same day:
After having discussions with the children, I noticed that they had reached a breaking point, and it was collectively decided that we relocate to Darwin. At the time, I considered this situation to be an emergency and it was to my understanding at the time that I would not be contravening any of the orders. I did what I thought was necessary to protect the health and safety of my children.
·The children and mother were driven to the airport on 27 January 2023 by the maternal grandfather and they arrived in Darwin later that day.
·The mother deposes that on 28 January 2023 the father was:
Notified in writing by way of email of the incident involving the children’s grandmother, our decision to relocate to [F Street, Suburb G], NT, and my intention to enrol the children into term 1 school in Darwin on the following Monday.
·There is no mention in the final consent orders of the mother being restrained from moving interstate.
·The mother proposes that she will pay in full the cost of the flights necessary for the children and herself to travel to Sydney to comply with the final consent orders.
·The children and the mother have been flying from Darwin and Sydney since July 2022 and the children enjoy flying; it is a relaxing time for them.
·The approximate flight time between Sydney and Darwin is four hours and 20 minutes.
·The mother has the ongoing support of her brother and sister-in-law including an offer to provide the mother and children with suitable accommodation at their property for the duration of each Sydney visit on a long-term basis.
·She has noticed a significant change in her children’s mental and emotional state since living in Darwin. They have become more social and engaging in their conversations, are able to sleep better, and are positive about “their education, future and prospects in life.”
Ms Calligan, the mother’s sister in law, swore an affidavit in support of the mother. She lives in the Sydney metropolitan area. She generously deposes that she is able to provide the children and the mother with sufficient accommodation and support at “any time which might be required of them.”
The father submitted that:-
·The mother deposes that she will still be able to comply with the final consent orders. The father has concerns as to the effect on the children of the travel time from Darwin to Sydney in the event the children were to remain living in Darwin. There is significant geographical distance and travel time involved in the children exercising time with the father pursuant to the final consent orders in the event they remain living in Darwin.
·Whilst the mother deposes that the flight time is approximately four hours, this does not consider the total travelling time involved which the father estimates will be approximately eight hours. Thus in the event the children continue living in Darwin per the mother’s application they will be travelling for approximately 16 hours each fortnight and this is not in the best interests of the children.
·The children were tired and had red eyes on the occasion they have travelled from Darwin to spend time with the father which impedes on the quality of the time they have with him.
·The mother deposes that she can pay for all the children’s costs to travel from Darwin yet the financial statement filed by the mother is unsatisfactory and missing significant detail. The mother deposes and average weekly income of $1,729. Her expenses are listed as totalling $595 per week. The expenses accounted for by the mother do not include taxation or mortgage payments. The mother’s financial statement does not disclose any financial resources to support the mother’s asserted ability to meet the costs of the children’s flight noting that she currently has savings of $162.
·The father has concerns as to the ability of the children to have a meaningful relationship with the father were they to remain living in Darwin.
·The mother has engaged private legal representation and has not indicated in her costs notice how such legal costs are to be paid.
·There is no evidence that the mother is financially better off in Darwin. She was employed on a full-time basis in New South Wales at the time of the final hearing in January 2023.
·There is no evidence as to why Darwin presents better opportunities for the mother. There is no evidence as to any support structure for the mother in Darwin and the mother is in fact moving away from her support structure including her sister-in-law who swore an Affidavit in the mother’s case.
·The mother made a decision to relocate on 28 January 2023. There was no mention in her trial affidavit that she had obtained a property in Darwin. If the mother had disclosed this the father would have been more cautious in the final consent orders that he entered into.
·The father was not aware until the mother filed her affidavit that it appears that the children are now being referred to as “Calligan.” This has not been advised to the father prior to the filing of the mother’s affidavit.
The mother submitted that:-
·Her financial position is such that she is able to meet her obligations pursuant to the final consent orders.
·Her proposal that the children travel from Darwin to Sydney is logistically possible and “would have no adverse impact on the children.” That travelling is not disruptive to the children.
·The mother deposes that she has surplus funds of $1,000 per week which is sufficient to meet her current obligations pursuant to the final consent orders.
·There is no mention in the final consent orders of any restraint upon the mother from moving interstate.
·The mother provided sufficient notice to the father with respect to changing the children’s schools.
·The mother has grave concerns that if the current orders were to be varied such a variation might compromise the children’s well-being and safety.
·The mother would consent to the alternative position of the Independent children’s lawyer that the children’s time with the father be decreased to one occasion per month but reiterates she has the financial capacity to comply with the current final consent orders.
·The mother conceded that the children did catch a midnight flight to Sydney: “there were no other flights that day other than lunchtime and the children slept on the plane.”
·Whilst the mother proposes to fly with the children, submissions were made that “if she can’t” then there is maternal family support here in Sydney to assist the children’s travel.
·The mother and children are stable in Darwin and have good support here in Sydney.
·The mother is of the view that there is no impact for the children in them being permitted to continue living in Darwin.
The Independent Children’s Lawyer submitted that:-
·It was her primary position that the final orders continue as they are.
·Her main concern is the travel distance for the children in the event they were to remain living in Darwin.
·The mother has support systems here in Sydney to assist her.
·Whilst the mother submits the children are settled in Darwin this is a recent change in their living and schooling arrangements.
·There is no assurance that the mother can continue to comply with the current final consent orders.
THE LAW
Matters involving issues as to relocation, even on an interim basis, are to be determined in the same manner as all parenting matters - by following the legislative framework set out in the Family Law Act 1975 (Cth) (“the Act”). They are not a special category of case. [1] Thus, whilst this is a significant issue for the Court to determine it is not an issue to be considered in isolation.
[1] see Morgan & Miles (2007) 312 FLR 114 at [72] and Sayer & Radcliffe & Anor (2012) 48 Fam LR 298, 311 at [47] and [48].
The pathway with respect to interim hearings is well settled.[2] The Full Court has affirmed that the procedure for making interim orders is a truncated process in which the court should avoid making findings based on contested facts, but rather look to agreed facts and issues not in dispute, whilst still following the legislative pathway.
[2] Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100 affirmed the now well settled pathway with respect to interim hearings as enunciated by Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346.
Pursuant to s 65D(1) of the Family Law Act 1995 (Cth) (“the Act”), subject to certain sections, a court may make such parenting order as it thinks proper. In deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act. The primary considerations as set out in s 60CC(2) 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 from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, the Court is to give greater weight to the need to protect the children from harm or being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC (3) sets out the additional considerations for the Court in determining what is in the children’s best interests.
Despite the court’s limited ability to make findings in respect of controversial facts in interim proceedings, the court is not relieved of the responsibility to determine risk. The assessment of risk requires the consideration of two elements; the consideration of whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event. [3]
[3] Dieter & Dieter [2007] FamCA 608.
Whilst the best interests of the children are the paramount consideration, they are not the sole consideration of the Court. Parents enjoy as much freedom to live as long as the children’s welfare would not be adversely affected. [4] A party wishing to relocate is not required to establish compelling reasons, nor is the parent who is “left behind” required to demonstrate reason as to why they should not relocate. The Full Court has clearly stated that there should exist rare or extreme factors to warrant the court exercising its discretion to make coercive orders requiring a parent to relocate so as to continue to be the primary carer of their child/children. However, if a parent who is seeking to relocate with a child concedes that they will stay and continue to parent the child if unsuccessful in obtaining the order they seek then an order refusing to permit relocation of the child is not a coercive one. [5]
[4] Franklyn & Franklyn [2019] FamCAFC 256.
[5] Sampson and Hartnett (No. 10) [2007] FamCA 1365.
Whilst the Court must consider the competing proposals of each of the parties in accordance with the legislative pathway, it is not bound by the parties’ proposals when determining what is in the children’s best interests.[6]
[6] U v U [2002] HCA 36; (2002) 211 CLR 238.
I am only required to address the relevant considerations as presented by the parties through the evidence and presentation of their case.
DISCUSSION
Whilst findings will be made at a final hearing as to the specific time line asserted by the mother, there are aspects of the evidence in the mother’s case that causes concern with respect to her bona fides.
The mother purchased the property in which she is residing now with the children in December 2020 and the sale settled three days prior to entering into consent orders on 23 January 2023. Her affidavit for that final hearing (“the mother’s trial affidavit”) does not depose this “investment” property. I accept the father’s submissions that he would have been more careful with the final orders he consented to on a final basis if he had been made aware of this fact by the mother.
The children and the mother were living at the home of the maternal grandmother at the time of the listing of the prior proceedings for final hearing. The mother’s trial affidavit does not raise any concerns or issues with respect to the maternal grandmother’s use of alcohol.
On 24 January 2023, the day after the final consent orders were made, the mother deposes that the maternal grandmother smelt of alcohol and was yelling at her. The children and the mother stayed at the home of her brother and sister in-law. It is the evidence of the mother’s sister in-law that on this evening the mother decided that she could no longer live in the house of the maternal grandmother and “went back to her parent’s house to pack.” In contrast, the mother deposes that she and the children decide the day after; on the 25 January 2023; for some inexplicable reason to travel to Darwin to see a “Event P.” There is no evidence before the court as to the mother’s attendance at the Event P; nor indeed that there was a “Event P” show in Darwin at this time. The mother then begins packing at 10:00am on 25 January 2023. Within the space of four hours the decision is then made by the children and the mother to in fact relocate to Darwin to live and the children and the mother leave for Darwin two days later.
At no time during this three day period does the mother advise the father of her intention to relocate with the children to Darwin to live, thus not affording the father any opportunity to seek orders restraining such a move prior to it occurring. The father is advised of the move the day that it occurs. It is unclear at this stage whether the father was advised prior to or subsequent to the children and the mother having physically arrived in Darwin. It reflects poorly on the mother’s attitude to her responsibilities of parenthood.
Thus the mother unilaterally relocated interstate with the children some five days after she entered into final consent orders. I have, even on an interim basis, significant concerns as to the manner and timing of the mother’s unilateral relocation and the speed in which it was undertaken. I have concerns as to the mother not disclosing her purchase of a property in Darwin prior to the father entering into final consent orders.
No submissions were made by any party or the Independent Children’s Lawyer that the current final consent orders pose any risks to the children – all parties seek as their primary relief that the final consent orders continue. The mother seeks that they continue with the children living in Darwin. In circumstances where the current final consent orders were only entered into between the parties one month ago I am satisfied that the orders for time the children are to spend with the father as contained therein do not pose an unacceptable risk of harm to the children.
Thus the parties ask that I effectively determine whether it is in the children’s best interests for the current orders to continue with the children living in Darwin or in the Sydney metropolitan area.
I accept that the travelling time deposed to by the mother does not include incidental time taken in flying interstate including travelling to the airport, being at the airport for the hours required prior to the flight leaving, collecting any baggage and thereafter travelling to and from the airport. I accept that as between the parties, the father’s estimation of eight hours travelling time is more realistic than the four hours travel time suggested by the mother. Thus on the mother’s proposal for the next three months the children will be travelling 16 hours each fortnight to spend two hours with the father. Thereafter the children will be undertaking the same travel each fortnight to spend increasing periods of time with the father which will not include overnight until Y attains the age of 13 years. It will further require this travel on special occasions such as on Christmas Eve, Father’s day, for approximately 4-5 hours on each of the children’s birthdays and for short periods of time during school holidays. There is no evidence as to how this will work on a practical basis. I accept that the reality of such onerous travel is not in the children’s best interests and has the potential to negatively impact the children’s time with the father; limited as it is for the next three months.
I accept the submissions of the Independent Children’s Lawyer that were the children to continue living in Darwin it would be in their best interests to reduce the travel they would have to undertake. Requiring these children to travel 16 hours a fortnight is not in the children’s best interest. Thus the children continuing to live in Darwin will significantly impact on the ability of the children to spend time with the father that was agreed by both parties only a few weeks ago was in the best interests of the children and thus will potentially negatively impact the children having a meaningful relationship with the father.
Whilst I am unable to make a finding based on the current evidence before the court, it is possible that the reason the mother relies upon for her unilateral move to Darwin with the children was known to her prior to entering into the final consent orders. If it was not and this incident was a “one off”, it raises the concern as to why the mother thought such a drastic response to this incident was in the children’s best interest and thus raises issue with the capacity of the mother to provide for the children’s needs. There is no evidence that the mother sought alternative accommodation for herself and the children prior to her relocation to Darwin in circumstances where her sister in law has offered unconditional accommodation and support when she and the children require it.
Whilst it was submitted on behalf of the mother that she has obtained support networks via the children’s schools subsequent to her relocation to Darwin, I accept the submission made by the father that the mother has, on the evidence before me, moved a significant distance away from her support networks in New South Wales, including her brother and sister in-law who have offered her support and assistance. This weighs in favour of it being in the children’s best interests that they return to the area they were living at the time of the making of the final consent orders pending a final hearing.
Whilst the mother asserts that she is able to finance the full costs of the children travelling with her to spend time with the father, I accept that her current financial position as set out in her Financial Statement is not clear. The mother does not particularise her weekly expenses to meet for example the loan secured by way of mortgage on the Darwin property. Whilst on the one hand the mother deposes she will be able to meet the costs of travel and undertake the travel with the children, submissions were made on her behalf that the mother had support networks available in Sydney to assist with the children travelling if she was not able to do so. It is possible that the mother will not be in a position to continue travelling and financing the children’s costs of transport to see the father were they to continue living in Darwin. This weighs against the mother’s proposal on an interim basis.
For the above reasons I am satisfied that pending a final hearing it is in the children’s best interests that they return to live in the area in which they were residing some four weeks ago, that is within the Sydney metropolitan area. I am satisfied having regard to the speed in which the mother was able to relocate with the children from New South Wales to Darwin in the space of three days from the time she asserts the decision was made that affording the mother until Saturday 11 March 2023 in which to return is ample time. I am satisfied the children and the mother have an accommodation option available to them in the Sydney Metropolitan area if required.
The mother in her written evidence refers to the children with the surname “Calligan”. The father deposes that he has never consented to a change of surname but that the mother has put him on notice that she intends to change the children’s names. The mother does not seek an order to that effect by way of her Response. The mother did not avail herself of the opportunity to respond to the father’s evidence by way of her affidavit. No submissions were made in response to the father’s oral application that the mother be restrained from changing the children’s surname pending further order. I am thus satisfied it is in the children’s best interests to have their surname remain as “Halprin” pending the court having the opportunity to hear evidence on this issue in full at a final hearing.
I make Orders as set out above.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 27 February 2023
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