JADOS & KAILEY (No.2)

[2020] FCCA 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

JADOS & KAILEY (No.2) [2020] FCCA 2016

Catchwords:
FAMILY LAW – Parenting – mother proposing to unilaterally relocate with the child ­ interim application to relocate with the child dismissed.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Rice & Asplund (1978) 6 FamLR 570

Applicant: MR JADOS

Respondent: MS KAILEY

File Number: DNC 323 of 2020

Judgment of: Judge Young

Hearing date: 25 June 2020

Date of Last Submission: 25 June 2020

Delivered at: Darwin

Delivered on: 25 June 2020

REPRESENTATION

Counsel for the Applicant: Ms Franz

Solicitors for the Applicant: Darwin Family Law

Counsel for the Respondent: Ms Holtham

Solicitors for the Respondent: Story & Associates

UPON NOTING

That the solicitor for the respondent mother sought an adjournment to take further instructions from the mother in relation to Rice & Asplund issues.

THE COURT ORDERS:

1. That the mothers application in her Response filed 24 June 2020 to relocate to Town B be dismissed.

1. That the matter be adjourned to 31 August 2020 at 11.00am for further directions.

IT IS NOTED that publication of this judgment under the pseudonym Jados & Kailey (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 323 of 2020

MR JADOS

Applicant

And

MS KAILEY

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application in respect of a seven year old child, X.  I made orders on 21 March 2019, little more than a year ago, about this child at the end of a contested trial.  The upshot of that trial was orders that saw the child spend increasing time with the father, beginning from a standpoint of substantial and significant time, through to when the child turned 10 in approximately three years’ time, the child spend the equal time with each parent.

3. The father has made an application on an urgent basis alleging that the mother is proposing to relocate with the child on 29 July, in other words, little more than a month away, to the township of Town B, which is in Region C.  Town B is probably about 800 kilometres by air from Darwin, maybe something less, maybe 500, I am not sure.  I am not told exactly.  It is in Region C.  It is remote from Darwin.  There is, I understand, a dirt road connection, but most communication with Darwin or the most convenient form of communication is by the air. 

4. The father is seeking an order that the mother not relocate without order of the court or further order of the court, which is something that was specifically brought to the mother’s attention in the reasons for judgment delivered on 21 March, that if she proposed to relocate in a way that would interfere with the child’s ability to spend time with the father, that would require an order of the court. 

5. Notwithstanding that, the mother has apparently been seeking another public service position.  She is a public servant by profession and she is seeking another position, which I take it is a promotion with the ability to earn more.  It is not contested that she proposes to relocate with the child within the very near future. 

6. I will just correct my observations about the distance of Town B.  According to Google Maps, it is 370 kilometres by air, 510 kilometres by road.  I think that road is a dirt road.  And, of course, very often closed during the wet season.

7. The mother’s counsel said that she needs to have this job because, as I understand her submissions, she will earn more money, and she is primarily responsible for the financial support of the child, and the father does not pay much in the way of child support.  That may be true.  I do not know.  It is not possible to test any of those assertions in this return of an urgent application. 

8. I am not satisfied that the return of an urgent application is an appropriate vehicle for upsetting a series of orders made little more than a year ago for the child to spend substantial and significant time with the father progressing to equal time in something less than three years’ time, it seems to me that steps that the mother would have to take are that there would need to be a Rice & Asplund hearing about whether the matter should be reopened at all, and secondly, if the Court was satisfied that there were substantial reasons, for example, change in circumstance, that meant that it was in the best interests of the child to reopen the matter, then it could be reopened. 

9. Relocation, in my view, is very, very rarely dealt with on an interim basis, for obvious reasons.  It is generally inappropriate, and I am satisfied that in this case, where there are existing orders that the child spend significant and substantial time with the father moving towards equal time in less than three years that is even more so the case. 

10. I do not propose to make the orders that the mother seeks permitting her to relocate.  Of course, my jurisdiction to make orders about the mother is very limited in these circumstances. 

11. I do not propose to make an order that she not relocate but should she relocate with the child, as things stand at the moment, there would be very, very likely an application for a recovery order which would be granted, the upshot of that would be – leaving aside the upset and distress for everyone involved, most particularly X, the upshot of that would be in all probability an order that – for a recovery order and that the child live with the father until further order.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 23 July 2020