Heatley and Heatley

[2020] FamCA 592

FAMILY COURT OF AUSTRALIA

HEATLEY & HEATLEY [2020] FamCA 592

FAMILY LAW – PARENTING – Where the father filed an urgent application for the mother and children to move to Sydney – Where the family resided in Brisbane during the marriage– Where the mother is the primary carer – Where the father’s application is dismissed – Order for the matter to be transferred to Brisbane.

APPLICANT: Mr Heatley

RESPONDENT: Ms Heatley

FILE NUMBER: SYC 4602 of 2020

DATE DELIVERED: 21 July 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 17 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton SC

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Mr Selfridge

SOLICITOR FOR THE RESPONDENT: Macpherson Family Law

Orders

IT IS ORDERED

1. That the children X born … 2016 and Y born … 2018 live with the mother.

2. That the interim application of the father seeking orders that the children live in Sydney be dismissed.

3. That the proceedings be transferred to the Brisbane registry of the Federal Circuit Court of Australia.

4. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Heatley & Heatley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4602 of 2020

Mr Heatley

Applicant

And

Ms Heatley

Respondent

REASONS FOR JUDGMENT

1. The interim applications before the Court concern two children, X aged four years and Y aged nineteen months. Their parents are Mr Heatley (“the father”) and Ms Heatley (“the mother”).

2. During the parties’ relationship, they lived in Brisbane. They separated on 3 February 2020 when the father took up employment in Sydney and the mother and the children remained in Brisbane.

3. The mother came briefly to Sydney with the children, in circumstances which are disputed. She stayed for 15 days and then returned to Brisbane with the children on 3 July 2020.

4. The father instituted the present proceedings on 10 July 2020. He seeks orders which would require the mother to return the children to Sydney; that the children live with the mother and spend time with him, initially not over night for a short period but then graduating to an equal time arrangement.

5. The mother wishes to remain in Brisbane and seeks orders that the children live with her and that the father has time with them on any weekend in Brisbane and by audio visual communication.

6. The mother also seeks an order transferring the proceedings to the Federal  Circuit Court in Brisbane.

7. It was agreed that, in the event that the Court were to determine that the children should live in Sydney, the mother would live in Sydney with them.

8. It was further agreed that, if the children were to return to Sydney, the proceedings would remain in Sydney and if the children were to remain in Brisbane, the proceedings should be transferred to Brisbane.

9. It is necessary to explore the events leading to the family’s present situation.

10. The parties commenced their relationship when they met in Country G in 2008. The mother moved to Australia in about 2009 and they started living together in Brisbane in 2009.

11. The mother became an Australian citizen and undertook the necessary accreditation to work as a health professional. She commenced working at the B Hospital in Brisbane and has remained in that employment, doing casual work after the birth of their first child.

12. They married in Brisbane in 2012.

13. In 2014, they purchased a unit at Suburb C, a Brisbane suburb, where they lived until 2018 when they purchased a property at D Street, Suburb F, also a Brisbane suburb.

14. The father was employed in a commercial industry. He was required to travel overseas extensively in the course of his employment and, after the children were born, he continued to travel, leaving the children in the mother’s care.

15. In 2019, the parties discussed moving to Country G and the father signed an employment contract to relocate with his present employer to their H City office. He was in the United States on business when he signed the contract.

16. The mother deposed that, on 26 January 2020, three days after the father travelled to Sydney to finalise the documentation for the move to Country G, he told her that he no longer wanted to be married to her.

17. The mother deposed that, after a week or so of the father insisting that he did not want to work on repairing the marriage, it was agreed that she and the children would travel to the United States to visit her family. She left on 3 February 2020.

18. While she was in the United States, the father moved to Sydney.

19. The mother and the children returned to Brisbane on 6 March 2020.

20. It is her case that the father told her that he intended to cancel the move to Country G and seek employment in Sydney and that he proposed they move to Sydney as a separated family.

21. The father deposed that the decision to cancel the move to Country G was mutual and that, because his previous position in Brisbane had already been filled, he took an offer to work in Sydney.

22. That issue cannot be resolved in the limited circumstances of this enquiry.

23. There is a significant dispute about the circumstances in which the mother agreed to come to Sydney.

24. The father asserts that the mother agreed to a trial period of six months. It is not in dispute that the father organised to rent a unit for the mother and the children in Suburb J, the mother signed the lease and moved her furniture to Sydney. The children were enrolled in day care.

25. The mother asserts that, when she returned from her visit to the United States, she discovered that the father had formed a new relationship in Sydney. She asked him to look for work in Brisbane but he refused. The father “kept insisting” that she move to Sydney to which she responded “I can’t”.

26. The D Street property was placed on the market. The mother says at the father’s insistence. No doubt the father will assert that the decision was mutual.

27. There was a tenant in the Suburb C unit.

28. The mother deposed that in March 2020 the father told her that he was closing the joint account and that he would pay her an “allowance”. On 14 April 2020, the father withdrew all the funds from the joint account.

29. The father paid the mother $2,700 in May 2020 and $2,000 in June and in July.

30. The father visited the children in Brisbane on 7 to 9 March; 13 to 16 March; 20 to 22 March; 25 March to 1 April; 10 to 15 April; 10 to 24 May and 3 to 8 June.

31. For the visit between 10 and 24 May, the mother moved out of D Street and the father lived there with the children.

32. Contracts were exchanged to sell D Street.

33. The mother deposed that she was concerned about leaving her friends and supports in Brisbane where she had lived for 11 years and that the father told her that, if she wanted to return to Brisbane, he would agree. She deposed that she agreed to move to Sydney because, with the sale of D Street, she had nowhere to live; that she felt pressured by the father and that she believed his promises of financial support until she could find work. She deposed that the father agreed to pay the rent and utilities for the Suburb J unit until she found work.

34. The mother and the children arrived in Sydney on 18 June 2020. She deposed that when she arrived in Sydney she learned that the father was living with his new partner and her children. She was not willing to allow the children to spend overnight time with the father and his new partner.

35. The D Street sale settled and the parties received about $120,000.

36. The mother deposed that on 29 June 2020 the father told her that he would pay the first month’s rent for the unit and that after that, she would have to pay the rent and reimburse him for the rent he had paid. She deposed that he said she could use the money from the sale of D Street but that she was unwilling to exhaust capital.

37. The mother deposed that on 1 July the father told her that she was “free to go” back to Brisbane. She said “The children and I?” but he did not answer the question.

38. On 3 July, the mother and the children drove back to Brisbane where the mother stayed with friends.

39. The Suburb C unit has now been vacated and the mother plans to move into the unit when her furniture is available in Brisbane. She is confident that she will be able to secure casual employment with her old employer.

40. The father deposed to the mother’s suffering mental health problems during their relationship.

41. Senior counsel for the father submitted:

    The mother has lived with some mental health instability. It is the fathers [sic] case that his geographical proximity to the children, and being in contact with them almost daily, has been an important part of their protection and care arrangements.

42. The father deposed that in January 2020 the mother said to him, “I am going to kill myself. I cannot do this anymore. I give up”. He deposed that she said the same to him in April 2020 while he was visiting the children.

43. The mother denies that she threatened to kill herself.

44. However, if the father’s evidence is ultimately accepted, it is extraordinary that he was willing to leave the children in the sole care of the mother and move to Sydney. There is no evidence from the father to explain why the mother’s mental health is a concern to him now when it did not appear to be a concern when they separated and he left the children in her care.

45. If the mother’s mental health is fragile, it could not be assisted by her being required to live in a place she does not want to be, where she has not been able to find employment, and where her financial position is uncertain.

46. The father, in his application, makes no offer of financial support for the mother. Through his counsel, he offered her the use of a unit in Suburb K that he has recently rented for himself and he proposes that her living expenses be met, not from his income, but from the capital proceeds of the sale of D Street.

CONSIDERATION

1. There is no doubt that the children will continue to benefit from having a meaningful relationship with both parents.

2. However, the father’s actions in moving from Brisbane to Sydney in February  2020 would seem to suggest that he was confident that the relationship could be maintained despite the distance. The fact that both parents agree that, despite the father’s separation from them from February to mid-June 2020, the relationship has continued to be close and loving, suggests that he was correct.

3. When the father left Brisbane, Y was 14 months old. Separation from Y did not appear to have persuaded the father not to move.

4. I do not accept, for the reasons that have already been stated, that there is any need to protect the children from any risk of harm arising from the disputed allegations about the mother’s mental health.

5. The children’s views are not relevant here.

6. It is an agreed fact that the children have a close and loving relationship with both of their parents. It is also an agreed fact that the mother has always been, and continues to be their primary carer.

7. The father chose to move to Sydney for employment in circumstances where he must have known that he would be separated from the children for a period of time.

8. If the mother and the children remain in Brisbane, the children will not be able to see their father as frequently as would be possible if she and the children lived in Sydney.

9. The children have not been accustomed to frequent contact with their father since February 2020. The 15 days that they spent in Sydney is unlikely to have created a situation where the change in their circumstances will have affected them.

10. However, it would be possible for the father to enjoy frequent contact with the children if he were to move to Brisbane which, in the future, would be at his option.

11. Further, the father was able, despite the restrictions on travel between Queensland and New South Wales, to travel to Brisbane and spend time with the children. Now that the travel restrictions have been lifted, he will no doubt be able to continue to do so with at least the same frequency.

12. The fact that the father’s application is for the children to continue to live with the mother, albeit in Sydney, would appear to carry a concession that she has the better capacity to provide for their needs.

13. Adults in Australia have the right to live where they want to live. The mother is entitled to choose to live in a place where she has lived for the past 11 years, where she has secure housing, prospects of employment and a support network of friends.

14. This is not a case where the mother has chosen to disrupt a long established and settled living arrangement and removed the children from an environment where they are settled.

15. Rather, the father has removed himself from the children’s settled environment and expects the mother and the children to accommodate his change of employment.

16. The legislation requires that the court give priority to the maintenance of a meaningful relationship between the children and the father, not an optimum one. The fact that the father’s relationship with the children between February and June 2020 remained a meaningful one suggests that it can be maintained.

17. The fact that the children have maintained a loving and close relationship with their father, despite being separated from him, is indicative of the mother’s parenting ability and her understanding of his importance in their lives and willingness to ensure that the relationship flourishes.

18. The children will remain living with the mother in Brisbane.

19. As a consequence, the matter will be transferred to Brisbane.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 21 July 2020.

Associate: 

Date:  21/07/2020