HAWTHORNE & RACKHAM
[2021] FCCA 559
•24 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAWTHORNE & RACKHAM | [2021] FCCA 559 |
| Catchwords: FAMILY LAW – Interim application – matter abridged – interstate relocation order – where mother relocates to Queensland – where mother pregnant with second child – where paternal grandparents and siblings live in Queensland – where applicant father seeks recovery order for return of child to former matrimonial home in Victoria – where parties were separated living under one roof – where father in new relationship – where medical advice precludes mother from flying late in term of her pregnancy – where mother acting protectively to retain child in Queensland – where paucity of support for mother or child in Melbourne – where mother actively affords spend and communication with father – applicable principles – application refused. |
| Legislation: Family Law Act 1975 (Cth) ss.4, 60CA, 60B, 60CC, 61C, 65D, 65DA |
| Cases cited: Atwill & Marden [2018] FCCA 1401 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Banks & Banks [2015] FamCAFC 36 |
| Applicant: | MR HAWTHORNE |
| Respondent: | MS RACKHAM |
| File Number: | MLC 2009 of 2021 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 18 March 2021 |
| Date of Last Submission: | 18 March 2021 |
| Delivered at: | Melbourne |
| Delivered on: | 24 March 2021 |
REPRESENTATION
| Counsel for the Applicant: | Ms N. Sdrualig |
| Solicitors for the Applicant: | Taussig Cherrie Fildes |
| Counsel for the Respondents: | Mr J. Williams |
| Solicitors for the Respondents: | Page Provan |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth) and ss 102D-102E of the Family Law Act 1975 (Cth) (Act), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
To the extent necessary, all times for service be abridged.
The application made by paragraph 3 of the Father’s initiating application filed on 25 February 2021 seeking by way of interim relief a recovery order for the return of the child X born in 2019 (the child) to the State of Victoria be refused.
Until further order, the child live with the Mother in Region B, Queensland.
The child be permitted to communicate by video or other electronic media with the Father on no less than five occasions each week with the Mother to facilitate all such communication, and for the purposes of this Order:
a.the video calls shall take place at a reasonable time and as agreed between the parties, failing which they shall occur between 4:00pm and 5:00pm Queensland time;
b.if the Mother is unable to take the call in the first instance, the Father shall be at liberty to call again after 10 minutes; and,
c.during the video calls the Mother shall ensure the child has the freedom to speak with the Father and not interfere with the video call unless it is to encourage the child to engage in the call or to clarify or assist with communication between the child and the Father.
The child be permitted to spend time with the Father in Region B Queensland as may be agreed between the parties in writing, and failing agreement:
a.on the second weekend of each month so that the Father may spend time with the child and the parties’ second child (if born) on the Friday, Saturday, Sunday and Monday of that weekend;
b.the child shall spend time with the Father between 8:00am and 6:00pm, for a period of 3 hours on each day;
c.the Father shall provide written notice to the Mother of his intended date of arrival in Region B Queensland no less than 14 days prior to the arrival date with such written notice to also nominate the days and times that the Father wishes to spend with the child;
d.changeover shall occur at McDonalds Restaurant, C Street, Town D, Queensland, or at such other place as the parties may agree in writing;
e.the Mother shall be responsible for the Father’s airfare costs for return economy flights from either Melbourne or Tullamarine airport to Brisbane airport for the purpose of spending time with the child(ren) (to a maximum of ten return flights until further Order) and shall reimburse the Father for his airfare costs within 7 days of the Father providing to the Mother a tax invoice or receipt evidencing the airfare costs.
Paragraphs 4, 5 and 6 of this Order shall apply mutatis mutandis in respect of the spend time and communication arrangements for the Father in respect of the unborn child that is due to be delivered in 2021 (second child), such arrangements to be operative with effect from three days after the delivery of the second child, or as may otherwise be agreed in writing.
The parties shall:
a.keep the other parent informed at all times of each other’s contact telephone numbers and address and notify the other parent within 7 days of any change in their contact number or address;
b.keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child or the parties’ second child (if born);
c.inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child or the parties’ second child (if born); and
d.inform the other parent of any medical appointments, immunisations or healthcare check-ups within a reasonable time and also ensure that both parents are provided the details of any results of such check-ups, appointments or procedures.
By this Order, the parties authorise the day care centres attended by the child and the parties’ second child (if born), to give each parent information about the children’s educational progress and any other care related activities and supply them with copies of any reports, newsletters, letters and general notices, photographs, certificates, and awards obtained by the children (at the requesting parent’s cost).
The parties authorise the other parent to obtain medical and healthcare information in relation to the child and the parties’ second child and authorise health and medical providers to discuss the children’s health needs with either parent.
The parties and the child shall attend an agreed Family Report writer and in default of agreement the Mother will nominate three Family Consultants and the Father will select one of these three Family Consultants for the purposes of the preparation of a Family Report at the equal shared expense of the parties to be given to the Court and to facilitate the preparation of such a report:
a.the parties shall attend upon the Family Consultant as directed by the Family Consultant.
b.the Family Report shall address the matters relevant to sections 60CC, 61DA and 65DAA of the Act and any other matters that the Family Consultant considers important to the welfare or best interests of the child;
c.the parties shall comply with all reasonable directions of the Family Consultant;
d.within 7 days of being notified of the Family Consultant, the solicitor for each of the parties (or, if unrepresented, then the party themselves) shall deliver to the Family Consultant copies of the following documents:
i.all relevant applications, responses, recent affidavits filed by or on behalf of each party; and
ii.any intervention or restraining orders currently in force.
e.the Family Consultant shall have leave to inspect subpoenaed documents produced to the Court.
Procedural orders
The father shall make file and serve any Amended Initiating Application, Financial Statement and any material in support concerning any application for an adjustment of property interests on or before 4:00pm on 29 March 2021.
The Mother shall make file and service any Amended Response and any material in support concerning any application for an adjustment of property interests on or before 4:00pm on 12 April 2021.
By consent, within 28 days of this Order the Father shall respond in writing (with supporting documents) to each of the queries raised by the letter dated 16 March 2021 addressed by the respondent’s solicitors to his solicitors.
Within 28 days of this Order each party identify the categories of documents of which discovery is sought in this proceeding.
Within 28 days thereafter, each party make discovery of the documents that has been sought of them by the other.
The proceeding be listed for mention at 10:00 on Tuesday, 15 June 2021.
The matter be fixed for Final Hearing at 10.00am on Monday, 6 December 2021 in the Federal Circuit Court of Australia at Melbourne before Judge A Kelly with an estimated hearing time of 2 days.
The following directions are made respecting discovery and use of documents at trial:
a.no later than four months before the trial date, the parties are to confer and identify all documents which they propose to adduce in evidence at trial (Documents);
b.no later than two months before the trial date, the applicant shall prepare, serve and file an indexed paginated folder of the Documents arranged in chronological order;
c.no Documents (including any valuations, family report or other expert reports) are to be attached to any affidavit, but may only be referred to in an affidavit by page number and volume (if necessary), from the folder(s) of Documents;
d.save with leave of the Court, no document identified pursuant to paragraph 19(a) of this Order may be relied upon or adduced in evidence at trial.
Each party be permitted to rely upon only one affidavit of evidence in chief for any witness including the applicant and respondent (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief) and further:
a.the applicant electronically file and serve any affidavits to be relied upon at the Final Hearing not later than 28 days prior to that hearing;
b.the respondent electronically file and serve any affidavits to be relied upon at the Final Hearing not later than 21 days prior to the hearing.
The evidence in chief of each party and any witness be by way of affidavit as provided by this order.
Other than as provided in this Order, no party may file or rely upon any further evidence without leave of the Court.
Not later than one month prior to the Final Hearing all parties do electronically file and serve an Outline of Case Document (not exceeding 12 pages) including:
CHILDREN
(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 child/ren (s 60CC factors);
(e)a list of contentions relevant to the operation of s 65DAA of the Act;
(f)a list of any other contentions relevant to the decision; and
(g)the actual orders sought.
PROPERTY
(a)a list of the material relied upon;
(b)a proposed asset pool identifying each of the assets, liabilities and superannuation interests said to comprise that asset pool;
(c)a minute of the proposed final order.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A.The parties have been requested to consider the issue of mediation prior to the mention of the proceeding on 15 June 2021.
B.The parties have been further requested to submit in advance of the mention on 15 June 2021, a joint minute of the orders to be sought at that mention.
IT IS NOTED that publication of this judgment under the pseudonym Hawthorne & Rackham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2009 of 2021
| MR HAWTHORNE |
Applicant
And
| MS RACKHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain my conclusions upon an interim application for a recovery order and ancillary relief respecting a child, X, born in 2019 (the child).
The application should be dismissed. In summary, I have concluded that despite the necessity to approach with caution the complex issues presented upon an interim application for a recovery order, the requirement to pay regard to the best interests of the child as the paramount consideration favours the conclusion that the stability of the child’s arrangements will be maintained and supported if he is to remain in Region B Queensland with his mother pending the delivery of his younger brother who is due to be induced in 2021. I consider that the child’s attachment to his mother to be of particular importance to him at this time. I do not consider it to be in his best interests that he should return to Melbourne at this stage. Self-evidently, the interstate nature of the parties’ residences makes it impracticable for the child to spend equal or substantial time with his father. Orders have been made to address this issue insofar as that can be done. An expedited trial will be granted.
Background
The facts and circumstances set down below are drawn from the parties’ affidavits. For the avoidance of doubt, it is accepted that the accounts of the parties are frequently disputed by the other and that none of the matters so described represent concluded findings.
The applicant father, a company director, was born in 1973 and lives in a two-bedroom townhouse in Suburb E, Victoria. The townhouse was purchased by the parties during their relationship.
The respondent mother, a manager employed by Employer F, was born in 1981. Her address is listed as Town D, Queensland, which, on the father’s evidence, is about 25 minutes from Brisbane.
The parties lived for the entirety of their brief relationship in Suburb E. Following the child’s birth, he attended the Suburb G Early Learning Kindergarten. The father’s evidence was that the child had enjoyed a stable and settled routine in Suburb E until the mother’s relocation to Queensland. The father provided a detailed description of the child care arrangements on a typical weekday and weekend which I have considered. He deposed that those care arrangements did not change following the parties agreement to separate under the one roof on 15 December 2020.
As noted, the mother is now advanced in the term of her second pregnancy and is due to deliver a child (a son) in 2021 (by an induced delivery).
While the parties and child are otherwise in good health, of some particular relevance to the present application is that the mother has been receiving psychological counselling over a somewhat extended period. This counselling has been sought and provided in direct response to the deterioration of the parties’ relationship, and more recently the mother’s discovery that, at least during the period of her pregnancy, the father has been engaged in an extra marital affair and now wants his relationship with the mother to be at an end. From his perspective, a corollary of the end of the relationship has been that she should vacate possession of the parties’ Suburb E townhouse and, upon return to Melbourne, that she and the children should do so no later than four months after returning to the State of Victoria.
The mother became pregnant with the child in 2018 after undergoing IVF treatment. She deposed to attending the majority of appointments for IVF and with obstetricians alone by reason of the father’s inability to attend on account of his work commitments. Following the birth, the child experienced difficulty in sleeping which resulted in the mother attending sleep school with the child and where she was rated as being at risk of postnatal depression, a risk which her psychologist has echoed as a concern for her pending pregnancy also. Again, she seems to have attended these sleep sessions alone.
The parties’ met on a dating website in 2014 or 2015 and began dating. Their initial relationship broke up at some stage. When they commenced cohabitation in 2018, their relationship was of about two years, ten months duration. They separated under the one roof on 15 December 2020, occupying separate bedrooms. The parties are not married.
The mother deposes that the father is a large well-built man at 188cm, weighing about 120kg. Before her pregnancy the mother weighed 66 kg. She is 176cm in height. While the incidents below as described by her remain untested and I proceed on the basis that they are in dispute, she recounted some episodes of physical violence and of capitulating to various demands which he made, doing so in the face of his unqualified insistence. The mother’s primary affidavit recounted in detail a number of episodes, including of incidents where the father had sworn at the mother, abused her, belittled her and blamed her (both in private and in public). Evidence of similar behaviours directed at third parties was also provided.
Also described were incidents where the father had become involved in a brawl at a pub with apparent police involvement.
A theme of the mother’s evidence was that the father effectively blamed her for the behaviours of the child such as when he cried, would not settle, became ill or caused a mess.
The father’s evidence is that following the birth of the child, the parties discussed and agreed upon equal shared parental responsibility for the care of their child and that the discussion was held for reasons which included that the mother regarded her career as being important to her with the father agreeing to support her return to work.
Equally, the mother’s evidence is that the father works extensive hours. By her account, the father would wake for work at 4:30am and return home at about 5:30pm and had little active involvement with the child including because he worked regularly on weekends.
The father deposed that he has been actively involved in all aspects of the child’s care, doing so around his own work commitments. The mother contests the father’s version of events, deposing that she has been the child’s primary caregiver and that the father’s involvement with the child had occurred substantially as a result of her encouragement and at times when she was in attendance. While the mother took 12 months maternity leave following the child’s birth and, as she says, attended to all of the child’s needs, she contends the father did not adhere to his promise to take three weeks leave following the child’s birth.
The parties are also in dispute as to the extent to which the father engaged in outdoor activities with the child.
It is common ground that the child has been in childcare but the mother says that she undertook all the research to do so. Likewise, she contends that the father’s response to the child suffering any illness was to direct her to take the child to a doctor but that he would, on occasion, disagree with the diagnosis or treatment being recommended.
Since June 2020, the mother has attended a psychologist who made a diagnosis and provided treatment for anxiety and a high level of stress arising from relationship difficulties. As at March 2021, the mother had attended 12 sessions with the psychologist in which she reported upon the father’s unpredictability, his rage, and of her fear for the safety of herself and the child. In a report dated 10 March 2021, the psychologist recounted the father’s capacity for anger and abusive behaviour both toward the mother and third parties, including in public situations.
In late 2020, the parties attended counselling after the deterioration of their relationship. It appears the attempted counselling was instigated by the mother who deposed that the father seemed increasingly disinterested in pursuing this course. She later discovered the father was having an affair with another, married, woman and that “They regularly message to each other and sent naked photos to one another. I did not confront Mr Hawthorne about the affair because I was afraid of facing verbal and physical backlash from him. I was also pregnant with our second child and reliant upon Mr Hawthorne for support.”
The mother stated that the relationship was ended by the father and deposed that although the parties agreed to live in separate bedrooms of their townhouse, from her perspective, the father was not concerned about the vulnerable situation in which she found herself and “still considers it my problem to solve, as is evident from his proposed orders.” Her evidence as to this issue is, to some extent, corroborated by the quite limited nature of the orders which he proposes should his application be granted that the mother and child return to Melbourne. In particular, he proposes that the mother and children should be permitted to occupy the Suburb E townhouse and to pay an amount of maintenance and the use of one of his vehicles for a period of four months. By way of parenting support he offers that the maternal grandmother should on occasion be permitted to fly to Melbourne following the birth of the parties’ second child. Quite what else he intended should occur for the mother and two infant children in Melbourne was not explained.
On 26 December 2020, the mother travelled to Queensland with the child to spend time with her family on holiday. At the time of departing Victoria it was the father’s belief that the mother had purchased a return ticket for a flight back to Melbourne on 17 January 2021. During the period that the mother and child were in Queensland, the father says that he communicated regularly with the child by phone and Facetime but that, having regard to his age, the child’s attention span was limited.
The mother’s account is that since living with her parents in Queensland from 26 December 2020 she has had relief from the anxiety, fear and uncertainty of life with the father from whom she needed a break, particularly in light of what she described as his anger and frustration levels in his interactions with the child. She expressed concern from exposure to abnormally high stress levels caused by the emotional upheaval of the father’s mood swings, betrayals and constant fatigue arising from her pregnancy and poor appetite. She deposed that while in the loving and supportive environment of her family, she has come to terms with the reality of the end of her relationship with the father. She describes the father as being preoccupied with his work and own needs. On any view, it would seem that the mother has sought for herself, and the child, refuge in a comparatively safe and supportive environment.
The mother states that she has no family or other substantive support in Melbourne whereas in Queensland she has the support of her mother, stepfather and siblings all of whom live in the same suburb. She expressed no real belief that the husband or his family would “step up” in any meaningful way “given that he has always prioritised work and worked long hours instead of focusing on his toddler and pregnant partner and then leaving his relationship”. Relatedly, she deposed that “Mr Hawthorne has continuously stated to me that I am not entitled to a financial settlement”. Counsel for the mother foreshadowed that the scope of the proceeding would be enlarged by the inclusion of an application for a final adjustment of property interests. Somewhat surprisingly, counsel for the father submitted, on instructions, that if this was to occur the mother should become the applicant in the proceeding. The basis for this was not explained further.
On 14 January 2021, the mother informed the father that she was giving consideration to remaining in Queensland until after the birth of the parties’ second child. The father responded that he did not consent. By her account, the father demanded that she return to Melbourne immediately and asked him to participate in mediation which he agreed to do. She deposed that the suburb in which she was living in Queensland was a COVID “Red-zone” and for that reason she was unable at that time to return as she did not meet the criteria for an exemption to travel and further, she had told the father of those matters.
Whilst the mother offered that the father could communicate with the child by video and that he could fly to visit the child in Queensland as often as he liked, she states that he said to her at this time he had no interest in flying to Queensland to see the child. The mother’s evidence is that she has both initiated and facilitated such video calls which are of about 30 minutes duration. She described these exchanges in some detail.
I am wholly satisfied that the mother will continue to facilitate the father’s desire to spend time and communicate with the child.
On 16 January 2021, the mother invited the father to participate in family dispute resolution at a mediation centre. The father attended to intake sessions but a certificate was later issued pursuant to s 60I of the Act.
The mother did not return to Melbourne on 17 January 2021 and on
20 January 2021 advised the father of her intention to remain, with the child, in Queensland until after the birth of the second child. The father did not agree in the mother’s stated proposal and requested that she return with the child and to confirm arrangements for the delivery of their second child in Melbourne.From 30 January – 7 February 2021, the father travelled to Queensland and spent unsupervised time with the child including by taking him on outings, swimming and various other activities. The father provided a detailed account of his activities with the child during this period. The mother states that the father provided only a few days’ notice of his intention to travel to Queensland and that she, and her family tried to accommodate all of the time that he wanted to spend with the child. By her account, she provided recommendations to the father as to the types of activities that the child might enjoy.
On the last day of his stay in Queensland, the father also discussed with the mother her immediate return to Melbourne. The mother deposed that the father twice asked when she would be returning and that she responded on each occasion “after the birth of the baby”.
On 23 February 2021, the father’s solicitor wrote to the mother making demand for the child to return to Melbourne. The time this email was sent was not disclosed. At all events, to this correspondence the mother’s lawyers replied seeking an extension of time in which to respond until the close of business on 24 February 2021. The father instructed, and his lawyers advised, that an extension would be allowed until 2:00pm on 24 February 2021. When no response was provided by the stipulated time, the father concluded that the mother did not plan to return and, so as to avoid delay, instituted a proceeding.
On the eve of the application for interim relief, on 11 March 2021, the father offered to provide certain financial assistance for the mother’s return, doing so in circumstances where he would be required to expend monies in excess of his income to do so. He proposed to meet the cost of the mother and child’s return flights to Melbourne “if she does not already have return flight booked as I understood was the case when she left Melbourne” and further to provide $400 per week as financial support pending a child support assessment. Contextually, this evidence was given where the mother’s case suggests the father has recently reduced his weekly pay significantly and is also paying an income to his parents. To these issues the father has not yet had an opportunity to respond. Otherwise, the net effect of the father’s proposal was that the mother should return immediately with the child and be offered the use of their townhouse for a term of four months whereupon she, together with the parties’ two infants, should immediately vacate the property in order that it may be returned to him for his sole use and occupation.
The father deposed as to the orders which he sought and provided reasons as to why they were appropriate including that orders should be made whilst there were no COVID-19 restrictions in place between Queensland and Victoria preventing the child’s return.
The mother deposed that the child has settled well in Queensland and described the assistance being provided by her parents including paying for their living expenses, rent and utilities with unrestricted access to a vehicle, the cost of which are also covered by her parents. She described in particular detail the level of care, love and support that is provided by her parents and to the child during the late term of her pregnancy. The mother also deposed that she has a close loving and supportive relationship with her sister and brothers who live nearby her parents.
The mother described her present living arrangements in terms which extolled the relative safety and comfort that is being provided to her and the child. She has enrolled the child in daycare in Queensland for three days per week.
By contrast, the mother deposes that the reality of her situation in Melbourne would be that of a single mother caring for two infants with no meaningful or safe support, whether from the father, his family or otherwise.
The mother deposed that following the birth of the second child, the maternal parents would be able to care for and assist her both financially and practically in a significant way, particularly as her mother is due to retire in the very near future. By contrast, accepting she had made some friends in Victoria, the mother said she would be without any significant support if ordered to return. She expressed particular concern for the added responsibility she would bear, in effect alone, in the circumstance that the father usually worked a 12 hour day. There was a paucity of evidence that the paternal family could offer anything meaningful in the way of support for the parties’ children and such as it was, seemed to suggest that such support was of a quite limited nature.
Relatedly, the father’s evidence left one with the impression that day-to-day care arrangements would, in effect, be left to the mother with him pursuing his business interests which require extensive hours of work. Insofar as the father implicitly recognised this to be the case, he proffered the suggestion that the maternal grandmother could fly to Melbourne on occasion, thereby filling the void which he could not fill having regard to the demands on his own time and the need to prioritise those demands.
Having regard to all of those considerations the mother deposed to feeling significantly lower levels of anxiety and stress and to being “much calmer and more collected when I’m caring for X and I do not have to worry about or continuously monitor [the father] becoming abusive and angry towards or in the presence of X. I no longer have to diffuse [the father’s] anger and calm [him] down or physically put myself between” the child and the father.
By letter dated 8 March 2021, the mother’s gynaecologist has recommended that she not travel once she has passed the 36 week mark of her pregnancy. Translated, it seems the mother should not travel after about 25 March 2021. The psychologist has provided an opinion that “Based on Ms Rackham’s current symptoms of anxiety and trauma, she is at high risk of experiencing Postnatal Depression. She will require a moderate level of support post-partum and being away from her family will heighten this risk. I have ongoing concerns for Ms Rackham and her child’s well-being and believe they will require a number of supports in place beyond counselling.” This evidence informs the true value of the protective environment that the mother has sought and been provided by her parents and stands in marked contrast to what is available in Melbourne.
There is evidence the mother had a net weekly income of $1,457 ($75,764 per annum) and has been able to work remotely during the current pandemic. Following the birth of their first child, in 2020, the mother returned to work, three days per week at Employer F. She has been approved to work remotely for a period of 12 months after the birth of the parties’ second child.
The mother, while opposing the application for a recovery order, both accepted and agreed in the need for the child to have a meaningful relationship with his father. She pointed to her present financial position and indicating that while she would go on parental leave for 28 weeks from 2021, her net weekly income in this period would be $730. This represented a marked reduction from her current weekly income of $1,457.
By a financial statement filed on 12 March 2021, the father stated that his average weekly income was $550 and that he had a total weekly expenditure of $2,050. He identifies the total value of the property owned by him as being ~$900,000 with liabilities of $732,000 and accrued superannuation of $134,500. This may leave out of account the value of his company.
In the interim, on 4 March 2021, the mother’s lawyers requested financial disclosure from the father. After being unanswered, this request was repeated on 11 March 2021. This resulted in partial disclosure of certain information the following date and gave rise to a detailed request for specific responses which remain unanswered. Counsel for the applicant properly accepted that the request should be answered within 28 days. For present purposes, counsel for the respondent advised that statements for certain bank accounts had not been provided but that a number of deposits and transfers of substantial funds had been identified and which were detailed in the mother’s affidavit.
On the basis of the presently available information, the mother contended that until October 2020, the father had a net fortnightly income of $4,000 which, from 9 November 2020 increased to $4,100 and from 21 December 2020, then increased to $5,200. This information was identified as standing in contrast to that which is disclosed by the father’s financial statement sworn on 12 March 2021 whereby a weekly income of $550 is now stated. No doubt, the opportunity will be taken to more fully examine these issues at trial.
From the financial accounts of the father’s company, H Pty Ltd, for the year ended 30 June 2020 it appears that it had total assets of $1.5M and liabilities of $1.0M with a resulting equity of $500,000. The trading profit and loss statement for the same period indicates income from sales and freight of $3.4M with a gross profit of $1.68M, expenditure of $1.9M producing a loss for the financial year of $248,000 which loss stands in contrast with a profit of $370,000 for the year ended 30 June 2019. The financial records state that a sum in excess of $500,000 is available for appropriation.
While counsel for the mother drew attention to a number of entries in the accounts which might be said to explain or reconcile the transition from profit to loss over the financial year in question, having regard to the urgency of the present interim application and the need to confine the issues for determination within reasonable bounds, I accept the submission of counsel for the father that the late service of this affidavit has effectively prevented her client from addressing the matters upon which the mother now seeks to rely.
Procedural history
On 16 February 2021, a certificate was issued by a family dispute resolution practitioner pursuant to s 60I of the Act indicating that the parties had not attended FDR and that it was not considered appropriate to conduct FDR any further at that point. Whether the parties remain open to mediation is unknown.
By an initiating application filed on 24 February 2021, the applicant father, sought urgent interim relief for the abridgement of the application including equal shared parental responsibility and for the return by the mother of the child to Victoria effective within three days of an order being made together with other ancillary relief. The application stated that no allegations of abuse, neglect or family violence were in issue.
On 24 February 2021, the father filed a notice of risk disavowing that the child was at risk of abuse, neglect or family violence. Otherwise the notice stated the facts and circumstances respecting the mother’s departure and failure to return to Melbourne with the child. In those circumstances it is not expected there will be any investigation by the Department of Families, Fairness and Housing at this point.
Despite the stated urgency, the respondent mother was served with process on 1 March 2021. On 11 March 2021, she filed a response seeking final orders.
The matter was returnable in a duty list on 15 March 2021 before a registrar. On that date it was adjourned to 17 March 2021 before the Court. Helpfully, each of the parties had furnished a minute of proposed orders and a detailed outline of case. By those means, the parties’ detailed proposals were before the Court. Following submissions, the Court reserved its judgment.
On 19 March 2021, the Court pronounced the orders made upon determination of the interim application as set out above.
Parenting orders
Part VII of the Act concerns the subject, Children, is arranged in 16 Divisions and comprises ss 60 – 70Q. Section 65D provides that the Court may make such parenting order as it thinks ‘proper’. In Bondelmonte v Bondelmonte,[1] the Court said of the power conferred by s 65D:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the Court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child. (emphasis added)
The inherently evaluative nature of the exercise of this power is thus apparent.
[1] (2017) 259 CLR 662, [8].
The objects of Part VII are stated in s 60B(1). They include to ensure that the best interests of children are met by protecting them from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence: Act, s 60B(1)(b). The principles underlying those objects recognise the manifold rights of children with respect to their parents: s 60B(2). The principles in s 60B(2) are expressed as being subject to an exception: “except where it is or would be contrary to the child’s best interests”.
In determining the best interests of a child, two primary considerations must be taken into account. By s 60CC(2), the Court must consider:
a)the benefit to the children of having a meaningful relationship with both of their parents; and
b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Act, ss 4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations).
Additional considerations are prescribed by pars 60CC(3)(a)-(m).
The Court is required to give greater weight to protecting children from physical or psychological harm and from being subjected, or exposed, to abuse, neglect or family violence.[2] Where the circumstances require, the need for protection from harm as addressed by par 60CC(2)(b) may well assume prominence over allowing for a meaningful relationship with both parents as addressed in par 60CC(2)(a). This conclusion is reinforced by the exception provided for in par 60B(2).
[2] Amendments to the Act effected by sub-s 60CC(2A) became operative from 7 June 2012.
When deciding what parenting orders ought to be made in proceedings under Part VII of the Act, the best interests of the children are the paramount, but not sole, consideration: Act, s 60CA; Morgan & Miles;[3] Franklyn & Franklyn.[4]
[3] (2007) FLC 93-343, [59], [73], [79]-[80].
[4] [2019FamCAFC 256, [28] and cases cited.
Interim orders
The principles in Goode v Goode,[5] apply to the determination of an interim application for parenting orders.[6] There, the Full Court drew attention to the amendments effected to Part VII of the Act,[7] the objects of Part VII and the imperative requirement that the Court must have regard, as the paramount consideration, to the best interests of a child in deciding parenting orders.[8]
[5] (2006) 36 Fam LR 422.
[6] (2006) 36 Fam LR 422, [66]-[82].
[7] The relevant amendments to Part VII took effect from 1 July 2006.
[8] (2006) 36 Fam LR 422, [7]-[10].
The Full Court in Goode, confirmed some statements in Cowling & Cowling as applying following important amendments to the Act.[9] It accepted that the procedure in making interim parenting orders would continue to be an abridged process such that the scope of enquiry was, of necessity, to be significantly curtailed from that which will obtain at a trial. It recognised that the Court was nonetheless constrained by an imperative requirement to “have regard to the best interests of the child as paramount in deciding what interim orders to make”.[10] The Full Court held:[11]
In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents 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 child. (emphasis added)
[9] (1998) 22 Fam LR 776.
[10] (2006) 36 Fam LR 422, [69].
[11] (2006) 36 Fam LR 422, [72].
The availability of the power to make a parenting order for a child to spend equal, or substantial and significant, time with a parent is conditioned upon the Court being satisfied that to do so would be in a child’s best interests and was reasonably practicable. If it is concluded as a fact not to be so, the power conferred by s 65DAA is not engaged: MRR v GR.[12] As that decision confirms, the Court is concerned with evaluating the reality of the situation and for it to make a practical assessment of the feasibility of equal or substantial spend time in all of the circumstances of the particular case.
[12] (2010) 240 CLR 461, [9], [13], [15]-[16].
Upon an interim hearing, the following principles stated in Goode’s case[13] are applicable when following the legislative pathway:
[13] (2006) 36 Fam LR 422, [82].
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.
In an application for interim parenting orders, including recovery orders, the Court must have regard to the considerations in ss 60CC(2)-(3). Where the exception in s 60B(2) is engaged, the rights of the child in relation to his or her parents should yield to the paramount consideration of deciding what orders are properly to be made in a child’s best interests: Act, ss 60CA, 67V.
The matters considered above are to be applied consistently with s 61DA(3) of the Act which provides that when the Court is making an interim parenting order, the presumption of equal shared parental responsibility applies unless the Court considers that it would not be appropriate in the circumstances of the case for the presumption to be applied when making an interim order.
It is because there will be little uncontested evidence at an interim hearing, that limited consideration of the factors identified in s 60CC may occur. Such consideration as is required at an interim hearing is in large measure defined by the manner in which the parties join issue.[14] While they must be considered, an exhaustive discussion of those factors is not required. Indeed, to do so may risk that “sight is lost of the forest for the trees”, including where the available evidence leads inexorably to a particular conclusion.
[14] Banks & Banks [2015] FamCAFC 36, [47]-[50].
Recovery orders – relocation
The Act makes particular provision for recovery orders: Act, ss 67Q-67Y.
The parties made passing reference to Morgan & Miles.[15] The principles were not the subject of particular disagreement. Boland J examined in detail the principles to be applied in relocation applications at both a final and at an interim level.[16] It is unnecessary to rehearse the analysis of the impact of amending legislation upon the applicable principles. His Honour recognised that interim and final orders were not dealt with separately by the Act and that the presumption of equal shared parental responsibility was not a mandatory consideration in making an interim order.[17] Further, his Honour concluded that the Act, as amended, required consideration of ss 60CC, 61D and 65DA in dealing with an interim application for a parenting order.[18]
[15] (2007) FLC 93-343, [88].
[16] Morgan & Miles (2007) FLC 93-343, [58]-[61].
[17] (2007) FLC 93-343, [82], Act, s 61DA(3).
[18] Morgan & Miles (2007) FLC 93-343, [86].
Relocation cases present very difficult challenges with far-reaching consequences for a child which necessarily require full investigation at trial.[19] In Morgan & Miles, Boland J cautioned 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 other types of cases in which the childs present stability may be extremely relevant on an interim basis.” This statement should not be misunderstood as establishing that interim relief in favour of allowing relocation cannot be allowed except in cases of an emergency.[20] A range of factors will often require evaluation.
[19] Morgan & Miles (2007) FLC 93-343, [84].
[20] Browne & Keith (2017) 55 Fam LR 208, [29].
While the Court will not condone unilateral relocations, such conduct is but one of the factors to be considered in the determination of what parenting orders are proper to make upon an interim application which invariably permits of a circumscribed hearing.[21] Conversely, where a parent has unilaterally relocated, the fact of having done so does not operate as a fetter on the exercise of the power to make such orders, including a recovery order, on as it considers to be proper.[22] Particularly is that so where an order has already been made for equal shared parental responsibility. In such cases, the parties are bound to determine jointly the living arrangements of a child including whether the proposed move would make more difficult, the arrangements for spend time of a child and his or her communications with the non-relocating parent. Where such an order is in place, absent consultation and notice, s 65DAC of the Act precludes unilateral conduct which may be remedied by injunction.[23] Viewed from this perspective, a recovery order for the return of a child which is made in the face of an existing order for equal shared parental responsibility may be seen as a form of mandatory interlocutory injunction directed to preventing a party from forestalling an existing court order.[24]
[21] Parks & Farmer [2012] FamCAFC, [87].
[22] Morgan & Miles (2007) FLC 93-343, [55], Stringer & Nissen (No 2) [2019] FLC 93-922, [26].
[23] Morgan & Miles (2007) FLC 93-343, [75]-[76].
[24] Meagher, Gummow & Lehane’s Equity, Doctrines and Remedies 5th Ed’n (2015), [21-395], p. 771.
The circumstances of the child at the time of the application or immediately before removal “particularly absent issues such as abuse or violence, may well be likely to be extremely relevant”.[25] Despite those circumstances, a parent seeking to relocate does not need to demonstrate compelling reasons in order to do so.[26] The Act neither contains any presumption against a parenting order which involves relocation, nor a presumption in favour of a parent with whom the child lived at the time of application.[27] The complexity presented in such cases arises in part from the tension which is inherent in parents being able to live wherever they like and the imposition of a restraint by injunction from living too far away from a non-relocating parent. In Franklyn & Franklyn, a Full Court said of this tension, that parents should enjoy as much freedom in the choice of where they should live as was “compatible with their obligations pertaining to the children”.[28] It was the recognition of this principle which underpinned the earlier statement that while the interests of a child are the paramount consideration, they are not the sole consideration.
[25] Morgan & Miles (2007) FLC 93-343, [87].
[26] AMS v AIF (1999) 199 CLR 160, [47], [92], [209].
[27] Morgan & Miles (2007) FLC 93-343, [74].
[28] [2019] FamCAFC 256, [28].
There will also be cases in which, on an interim basis, a child’s present stability will be an extremely relevant consideration: Cottey & Backe (No 2).[29] The maintenance of stability on a case specific basis is well recognised.[30]
[29] [2020] FamCAFC 206, [68].
[30] See, Rollins & Van Hummell [2016] FamCA 916, [9]; Larsson & Casey [2016] FamCA 971, [23].
Boland J was careful to recognise that Morgan & Miles was not an interstate or international relocation case. Where the geographical distance presented by the parties’ current residences may raise additional complications, for example, in relation to spend time or communication, it is not distance per se which should be the determinative criteria. Boland J held:
. . . what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non-relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child's relationship with the non-relocating parent can be maintained and fostered.[31]
See also Cales & Cales;[32] Farmer & Rogers.[33]
[31] (2007) FLC 93-343, [91].
[32] [2010] FCAFC 237, [135]-[144].
[33] [2009] FamCAFC 117, [24].
These principles recognise that on an interim basis the Court should focus on maintaining stability for a child pending a final hearing. Morgan & Miles lays particular emphasis upon the child’s circumstances both at the time of unauthorised removal and at the time of the application, particularly where issues of violence or abuse are absent. It does not render those circumstances as being dispositive in the determination of what orders are proper to be made having regard to a child’s best interests. Consideration must be given to the consequences of the move. Such consequences will vary in the unique circumstances of each case. Questions must intrude as to how a child’s relationship with the non-relocating parent can be maintained and fostered.
Consideration
The Court had the benefit of careful submissions from Counsel.
As the cases confirm, what is called for in the context of a circumscribed hearing is a structured consideration of the matters relevant to the instant case.
In making interim decisions, the legislative pathway must be followed notwithstanding that the Court will often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of a child.[34] I accept that within the constraints of an interim hearing, evidence cannot be tested by cross-examination and that disputed issues of fact cannot be the subject of definitive findings.[35] But this does not mean that “merely because the facts are in dispute” the evidence on a particular topic must be disregarded, or “the case determined solely by reference to agreed facts”.[36] For those reasons, findings made on an interim hearing should be couched with circumspection, no matter how firmly a judge’s intuition might suggest that the preliminary finding would be borne out after a full testing of the evidence. Despite this, on an interim hearing, the Court should “appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues not to be ignored.” This reasoning has been affirmed on many occasions. In this context, I accept the parties’ submissions as to the caution that is to be applied on an interim application.
[34] Goode’s case, (2006) Fam LR 422, [81].
[35] Lethbridge & Taylor [2020] FamCAFC 129, [2] (citations omitted) (Kent J).
[36] Eaby & Speelman (2015) FLC 93-654, [14], [18], citing Marvel.
The submissions did not closely follow the progressive or staged analysis that is identified in the Act or the authorities addressed above. Adopting the principle that the consideration which is required at an interim hearing is largely defined by the manner in which the parties have joined issues,[37] I decided upon the orders that ought to be made in the child’s best interests having regard to their submissions and my examination of the evidence above.
[37] Banks & Banks [2015] FamCAFC 36, [47]-[50].
Although it is said that the Act does not treat relocation as a special category of parenting order, when a parent seeks to relocate and the Court makes orders respecting this issue it is, of necessity, an order as to who a child will live with and so will affect spend time arrangements. As stated above, the Act requires a child’s best interests to be addressed as a paramount, but not the sole, consideration. Further, the determination of a relocation application will vary between those cases where an order for equal shared parental responsibility has been made, and those where it has not. In the former case, each parent has a primary duty to determine jointly what their child’s living arrangements should be and whether relocation would make more difficult the child spend time with the non-relocating parent. In the latter case either parent may exercise parental responsibility. In either case, the Court must be satisfied (absent a relevant exception), that the parties have made genuine attempts to resolve their dispute and must consider the parties’ competing proposals.[38] I am satisfied that genuine attempts have been made to resolve the present dispute: Act, s 60I. Otherwise, I have sought to address these matters conformably with the parties’ submissions.
[38] Morgan & Miles FLC 93-343, [72]-[81].
The parties competing proposals are directly opposed. The father seeks the immediate return of the child. The mother seeks for him to remain. I have set out above the nature of the relief that was sought by the parties. It was not suggested that the outcome of the interim application could be other than binary. If I accede to the father’s application, the child will return to live in Melbourne. If I accede to the mother’s submissions, he will remain living with her on an interim basis. In making those observations, the Court must consider, but it need not yield to, the parties’ proposals.
From the father’s perspective the main issues arising on the interim application are: (1) whether the mother and child be permitted to remain in Queensland where the father seeks an order for the child’s immediate return; (2) the time that the child should spend with his father and their newborn second child; (3) if the child was to remain in Queensland, the spend time arrangements proposed by the mother being, at her cost, for the father to spend time with the child for graduated and increasing periods.
From the mother’s perspective, the main issues arising on the interim application were: (1) where the children should live on an interim basis; (2) where the mother and children should live after the arrival of the second child; (3) risks presented to the mother and resulting impact on children in terms of isolation and support and family violence; (4) family violence and father’s capacity to parent; (5) risks posed by distance; (6) spend time; (7) final live with arrangements. The mother adopted the primary position of remaining in Queensland with an alternative that she have sole use and occupation of the parties’ home, the use of a car and weekly maintenance of ~$1,300
In contrast with Morgan & Miles, interstate issues intrude directly in this case.
In the circumstance that the medical evidence effectively proscribes the mother from travelling after 25 March 2021, the parties were encouraged to narrow the focus of their submissions upon the relief that should be given, or refused, (as the case requires) to the immediate short term.
Applying the settled principles which govern interim parenting orders, I have endeavoured to distil the evidence with an eye to identifying where the parties are agreed upon matters and where they are in dispute. Insofar as they are in contest, many of those factors are not of determinative significance in deciding what orders should be made in the children’s best interests.
As there are no parenting orders in place, by force of s 61C of the Act, each of the parties presently have parental responsibility for their child. As a consequence, in January 2021 it was open to either parent to exercise parental responsibility at the time that the mother determined it was best if the child remained with her in Region B Queensland until after the delivery of the parties’ second child. Nonetheless, the father submitted, correctly, that the mother’s decision to remain in Queensland and to do so in the face of the father’s objection (when informed of her decision), operated as significant factors weighing in the determination of the interim application.
The indiscriminate use of the expression ‘unilateral relocation’ may mask rather than expose the true nature of the conduct in issue. It is a somewhat conclusory expression. The present application is not of the kind where a parent had set upon a design calculated to unilaterally relocate without any notice to the other parent. Looking broadly at the matter, although the parties attended counselling, on one view the father had decided the relationship was over and wanted the mother to leave the Suburb E townhouse quite quickly. On the eve of Christmas she sought to be with her family – a somewhat more attractive option than living under the one roof of a townhouse where she was not wanted. Having travelled to Queensland she was able to take stock, no doubt doing so with the benefit of some parental consultation and advice. On the father’s evidence the mother has been candid in making disclosure of her decision (once made), to remain in Queensland for a time. Viewed collectively, those matters stand in stark contrast with a unilateral relocation.
It was agreed that the child should have the benefit of a meaningful relationship with each of his parents. I accept it is in the child’s best interests to have the benefit of an ongoing and meaningful relationship with his father. The mother accepts the need for the child to have a meaningful relationship with his father. Her evidence persuades me that she has set in place the types of arrangements needed to provide the child for frequent contact, and opportunities to spend time, with the father and that she will continue to do so.
The father submitted that, given the child’s young age, it is in his best interests to spend regular and frequent time in order to further develop and maintain a bond and, as was said, this is a more critical factor given the stage of the child’s development in his infancy. The orders made upon the parties’ submissions include the provision of a family report which will be of particular assistance as providing independent expert evidence upon the issue of attachment.
It was submitted that having regard to the child’s young age the reality of effective communication by electronic means was necessarily limited and could not be seen as being commensurate with, or an appropriate substitute for, regular, face-to-face time. It was said that it would be onerous for the child at such a young age to be required to travel. The father further submitted that as the mother was due to deliver the parties’ second child, those considerations applied with even greater force to that child upon his birth. The unavoidable tension that is inherent in making interim orders of this kind is thus exposed.
As to risk, it was not submitted that the father poses an unacceptable risk of harm to the child. There was force in the father’s submission that there have been no police reports for interim intervention orders made in this proceeding and further, it has not been proposed by the mother that the father’s time with the child should be supervised. Those factors also are somewhat instructive. Contextually, the mother’s notice of risk does not allege that the child has been subjected to family violence. Rather it is said that he has been exposed to it: Notice of Risk, item 17. While the father denies these allegations, if may be accepted that upon an interim hearing in cases of unilateral relocation, “risk cuts both ways. There are the obvious risks of exposing children and their carer to a violent and abusive parent; there is also the risk of depriving children of a potentially worthwhile and significant relationship, on the basis of uncertain and controversial evidence”: Atwill v Marden.[39] There, as Judge Brown recognised, the Courts task, “notwithstanding the inherent limitations of the evidence before it, is to assess the degree of risk attaching to the children concerned and put in place responses which are proportionate to the degree of risk so identified.” I agree. Where interim orders are made the effect of which includes refusing a recovery order, the Court must address both the parties’ proposals and the orders it considers to be in a child’s best interests that seek to foster and maintain the relationship with the non-relocating parent.
[39] [2018] FCCA 1401, [8].
It was submitted that given the stability of the mother’s employment, including that she had been given approval to work remotely for a period of 12 months following the birth of the second child, there would be no prejudice to her employment if she were to return to Melbourne. The evidence discloses that the mother has paternity leave entitlements of $730 per week and accumulated cash resources of $90,000. This may be accepted. Contrastingly, it seemed to be implicit in the parties’ submissions that this was not a case where there was any realistic prospect of the father relocating his business activities.[40]
[40] CfMRR v GR (2010) 240 CLR 461.
Those matters notwithstanding, the present case is one in which it is also extremely relevant to consider the need to provide and maintain for the child and environment that is not only stable, but one which, so far as it can be achieved, is optimal. As observed in the course of submissions, the circumstance that the mother is shortly to deliver a second child cannot be ignored. At a practical and realistic level, the idea that it would be optimal for the child to remain in Melbourne where the mother will have minimal support stands in marked contrast with the very significant tangible support that will be provided in Region B Queensland. I consider that the mother’s decision to remain with her family is understandable as the protective act of a mother.
I consider in the present circumstances that the maintenance of the child’s present stability is of extreme relevance particularly in promoting his attachment to his mother at a time when the delivery of his younger brother is imminent. I also recognise that preservation of this attachment necessarily carries an impact for the ability of the child to spend time with his father.
I have not traversed, but have considered, each of the matters identified by s 60CC(3). These reasons reflect a focus upon the issues as emphasised by the parties’ submissions, including their submissions as identifying the additional considerations upon which particular reliance was placed.
As concerned additional considerations, although the parties have given contested evidence in relation to the nature of their respective relationships with the child, it is clear the child is still very young. Further, there is quite a deal of evidence supporting a conclusion that the child does, and will, benefit from his relationship with his maternal grandparents, particularly in the near term at a time when his mother will be subject to the additional demands of caring for his younger brother.
I cannot resolve the parties’ dispute about the extent to which they have taken opportunity to participate in decisions in relation to the child or the manner in which they have spent time and communicated with him. There is some evidence that the responsibilities of motherhood have, by and large, been left to the mother and that the demands of the father’s work have been for extremely long working days leaving him tired and irritable at the end of a day.
I have considered the likely effect of changes on the child in circumstances where he remains in Region B Queensland, including the likely effect of his doing so upon one or other parents. I accept that the consequences of remaining in Region B Queensland have an immediate impact upon the child’s ability to spend time with his father. The practical difficulty and expense of his doing so is also an issue. These factors cannot be put out of account and are of obvious relevance.
I consider it to be of importance that at this stage the mother’s capacity to provide for the child’s emotional needs is a factor that warrants particular weight. To my mind, in the immediate near-term, the mother’s capacity to provide for those needs before, upon and immediately after the delivery of the younger child will be significantly enhanced by the capacity of the maternal grandparents to assist the child and mother.
In the determination of an interim application for a recovery order, just as risk ‘cuts both ways’, so too does the absence of a marked risk. As the reasoning in Morgan & Miles recognised, particular emphasis should be placed upon the circumstances at the time of an application where issues of violence or abuse are absent. Such issues are not wholly absent in this case. The mother’s evidence, including that of her psychologist, speaks to the nature of the risk. Consideration must be given to the consequences of a move in the unique circumstances of the particular case. The child, the subject of the present application is a toddler who is developing attachments to each of his parents. The significance for a young child of maintaining his attachment to his mother cannot be overstated. In this case, there is good evidence that the child has been predominantly in the care of his mother. In this case, the parties’ economic circumstances do not preclude the father from travelling and insofar as he points to the mother’s accumulated savings, she has offered to bear his costs of travel to Region B Queensland for a period (which very nearly equates to the period for which the father offered the mother and children occupancy of the Suburb E townhouse).
In those circumstances, I consider that the parenting orders that should be made at this juncture should be framed within relatively narrow parameters.[41]
[41] Act, s 61D.
As noted, no order for equal shared parental responsibility is in place. The making of such an order on an interim basis would trigger a requirement to consider whether the child should spend equal, or substantial and significant, time with each parent.[42] For the purposes of making interim orders, I do not consider it appropriate to apply the presumption that it would be in the child’s best interest for the parties to have equal shared parental responsibility.[43] It is not appropriate because at present the parties’ evidence remains untested and, in the urgent circumstances which obtain, the manifold considerations which may inform a decision to make a parenting order of that kind should be reserved for full examination at trial. This being so, the power to make orders for equal, or substantial and significant, time is not engaged: MRR v GR.[44]
[42] Morgan & Miles FLC 93-343, [68].
[43] Act, s 65DA(3).
[44] (2010) 240 CLR 461, [13].
Given the conflictual nature of the matter, it is inappropriate for parental responsibility to be determined at this juncture. Consequently, I have given consideration to orders for spend time and communication with the child and in this respect was assisted by the mother’s proposals. In light of the parties’ exchange of such proposals it follows that each parent has been afforded procedural fairness in terms of the orders that might be made.
The Court must consider the unique circumstances of each case when issues of relocation arise and must do so irrespective of whether the proposed relocation is intrastate, interstate or international. The facts and circumstances of this case and in particular the pending arrival of the child’s younger brother favour the conclusion that the child’s best interests will be served by permitting him and his mother to remain in Region B Queensland at this time.
Conclusion
The regrettable circumstances of this interim application serve to underscore the importance of parties, wherever possible, identifying and adopting strategies that will minimise for them their involvement in protracted litigation. In the present case, the parties would be well advised to engage as soon as is reasonably practicable in exploring what parenting orders they consider to be in their child’s best interests. Having regard to their quite modest estate, they would be equally well advised to identify means of resolving any claims for an adjustment of property interests without further litigation.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 24 March 2021
0
12
2