KALDAS & KALDAS

[2020] FCCA 1723

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALDAS & KALDAS [2020] FCCA 1723

Catchwords:
FAMILY LAW – Parenting – Interim Relocation – Mother relocated with parties’ four children from Town A to Town B – Father’s application children be returned to live in Town A pending final hearing. HELD – Children to live in Town A and the Mother to do all things necessary to return the children to Town A.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Morgan & Miles [2007] FamCA 1230

Applicant: MR KALDAS

Respondent: MS KALDAS

File Number: MLC 5536 of 2020

Judgment of: Judge Bender

Hearing date: 23 June 2020

Date of Last Submission: 23 June 2020

Delivered at: Melbourne

Delivered on: 26 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Barbayannis

Solicitors for the Applicant: Marshalls + Dent + Wilmoth

Counsel for the Respondent: Mr Bartfeld QC

Solicitors for the Respondent: Heinz & Partners

THE COURT OURDERS UNTIL FURTHER ORDER THAT:

1. The parties’ children W born in 2011 (“W”), X born in 2013 (“X”), Y born in 2015 (“Y”) and Z born in 2018 (“Z”) (“the children”) live in Town A and the Mother do all things necessary to return the children to Town A no later than 4:00pm on 3 July 2020.

2. The matter be adjourned to the sittings of the Federal Circuit Court of Australia at Mildura on 30 June 2020 at 10:00am in the duty list.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5536 of 2020

MR KALDAS

Applicant

And

MS KALDAS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is the Father’s urgent Application seeking orders that the parties’ children, W born in 2011 (“W”), X born in 2013 (“X”), Y born in 2015 (“Y”) and Z born in 2018 (“Z”), return to reside in Town A in the former matrimonial home after, on the Father’s evidence, the Mother’s unilateral move to Town B with the children on 21 May 2020.

2. The Mother opposes the Father’s Application that W, X, Y and Z return to reside in Town A and seeks orders that she be permitted to reside with them in the Town B/Region C.

3. In the event that the Father is successful in his application for the return of W, X, Y and Z to Town A, it is the Father’s proposal that should the Mother choose to return with the children to Town A, she reside with them in the former matrimonial home and they spend five nights a fortnight with him.

4. It is the Father’ position that in the event that he is successful in his application that W, X, Y and Z return to live in Town A and the Mother does not wish to return to Town A, then the children live with him in the former matrimonial home in Town A.

5. Whilst not explicitly addressed in submissions made on behalf of the Mother or in the quite voluminous affidavit material filed by her or on her behalf, it is apparent from the tenor of submissions made on the Mother’s behalf that if the Father is successful in his application, the Mother would return to Town A with W, X, Y and Z.

Background

1. The Father was born in 1974 and is aged 45 years. He is employed by Employer D on a full-time basis as a professional earning approximately $160,000 per annum.

2. The Mother was born in 1980 and is aged 40 years of age. She is currently engaged in home duties.

3. The parties commenced cohabitation in 2006 and married in 2009.

4. The parties individually attended a marriage counsellor in April 2020 because of quite longstanding difficulties in the marital relationship.

5. In April 2020, the Mother travelled to Town B for seven nights on her own leaving W, X, Y and Z in the care of the Father.

6. The parties separated on 2 May 2020 when the Father left the former matrimonial home and moved in with his parents in Town E which is approximately 30-40 minutes from the former matrimonial home.

7. On 17 May 2020, the police issued a Family Violence Safety Notice for the protection of the Mother, W, X, Y and Z on an ex parte basis. The statement of reasons contained in that notice states the following:

   “Respondent and AFM are recently separated after being in a relationship for 15 years and married for 10. Approximately 2 weeks prior to this report the relationship came to a head and the Resp partially moved out. The AFM/Resps marriage had been breaking down for the past 2 years with the pair sleeping separately since. The recent lockdowns for COVID have put strain on the relationship which has resulted in the Resps behaviour becoming more controlling. The AFM has spent the last few weekends with family in Town B and the Resp has cared for the children in the family home. On 17.5.2020 the AFM returned home from Town B and was approached by the Resp who spoke to her away from the children and told her that she was not to have anyone at the house other than him whilst the children were present and also told her that he was disconnecting her mobile phone and that he has removed her from the family’s private health fund. The Resp told the AFM “You’ve really fucked up” due to her taking a frypan to Town B and said “If you take one more thing then “motion to slit across his neck gesture” and stated “I’ll bury you””

8. On 20 May 2020 the Father’s solicitors forwarded an email to the Mother. They advised that they acted on behalf of the Father and in paragraph [4] of the email stated as follows:

   “In the meantime, we advise that pending the final resolution of all matrimonial issues it is inappropriate for you to relocate or remove assets from the former matrimonial home without first obtaining the approval of our client or this office on his behalf. In the event that you do relocate or remove any item from the home, our client will have no alternative but to bring proceedings forthwith in order to protect the current position”.

9. On 21 May 2020, the Mother moved with W, X, Y and Z from the former matrimonial home to Town B.

10. On 21 May 2020 a Family Violence Interim Order (“IVO”) was made on an ex parte basis in the City F Magistrate’s Court for the protection of the Mother, W, X, Y and Z. That order prevents the Father from going within 200 meters of the former matrimonial home or any other place where the protected people live, work or attend school. The IVO does not contain the “usual” Family Law Act orders exemption.

11. On 25 May 2020 the Father’s solicitors sent a further email to the Mother which states in part:

    “Our client instructs that he has been informed that you have unilaterally relocated to Town B with the children. Further, you have removed substantial chattels and other assets from the former matrimonial home.

    We put you on notice and unless you and the children return to the former matrimonial home, together with the chattels and assets removed from the home by 5.00pm Thursday 28 May 2020, our client will have no choice but to issue proceedings to locate and recover the children and seek injunctions to restrain you from disposing of matrimonial assets.”

12. On 26 May 2020, the Mother’s solicitors forwarded an email to the Father’s solicitors which states in part:

    “We are instructed that our client fled Town A in circumstances of severe family violence.”

13. On 29 May 2020 the Father filed an Initiating Application seeking inter alia, an urgent interim order for the return of W, X, Y and Z to Town A.

Evidence

The Father’s Documents

1. The Father relies upon the following documentation:

   (a)Initiating Application filed 29 May 2020;

   (b)Affidavit of the Father sworn 28 May 2020 and filed 29 May 2020;

   (c)Affidavit of the Father sworn and filed 22 June 2020;

   (d)Financial Statement of the Father sworn 28 May 2020 and filed 29  May  2020;

   (e)Notice of Risk of the Father filed 29 May 2020; and

   (f)Written submissions prepared by the Father’s Counsel dated 23 June 2020.

The Mother’s Documents

1. The Mother relies upon the following documentation

   (a)Amended Response to the Initiating Application filed 22 June 2020;

   (b)Notice of Risk of Abuse filed 16 June 2020;

   (c)Affidavit of the Mother sworn and filed 16 June 2020;

   (d)Affidavit of Ms G sworn and filed 18 June 2020;

   (e)Affidavit of Ms H sworn 21 June 2020 and filed 22  June 2020; and

   (f)Written Submissions of the Mother’s Counsel dated 23 June 2020.

2. The Court was requested to listen to a recording made by the Father on 5 May 2020 between himself and the Mother (noting that the Mother was unaware at the time that the recording was being made). The Court has listened to that Recording.

The Law

1. Whilst it is a decision made in 2007, Counsel for both the Father and the Mother agree that Morgan & Miles [2007] FamCA 1230 continues to be the leading authority in relation to the issue of interim relocation having been cited with approval in many judgments delivered since its delivery.

2. Morgan & Miles (supra) was decided shortly after the introduction of the 2006 amendments to the Family Law Act 1975 (Cth) (“the Act”). Accordingly, her Honour considered whether the Act as amended required different principles to be applied when determining a parenting application when one party wishes to relocate.

3. After careful consideration of the legislation, her Honour concluded the following in paragraphs [80]-[81] of her judgment:

   “80. It follows from my exposition of the legislation, that earlier core principles:

   - that the child’s best interests remain the paramount but not sole consideration;

   - that a parent wishing to move does not need to demonstrate “compelling” reasons;

   - that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and

   - the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,

   remain valid.

   81. What the legislation now requires is:

   - consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;

   - if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility

   but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.”

4. Her Honour under the heading “What is the effect of the legislation in dealing with an interim application?” held as follows:

   “82. It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.

   83. I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.

   84. The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.

   85. In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph. Whilst lengthy, it aids understanding to set out the relevant passages from Goode:

   71. The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.

   72. 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.

   73. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).

   86. I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.

   87. As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.

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

5. It is the Father’s evidence that whilst he was aware that the Mother wanted to move to Town B in order to, as he believes, pursue a relationship with a gentleman by the name of “Scott” from whom he found a 40^th birthday card addressed to the Mother in very affectionate terms, he at no time acquiesced to the Mother moving to Town B with W, X, Y and Z.

6. The Father agrees that the Mother made it quite clear that she did not wish to remain living in Town A but that in his discussions with her he emphasised that they should not rush any decisions and needed to work through what was to happen and reach an agreement in relation to parenting matters and property division.

7. Shortly after the parties’ separation on 2 May 2020 the Father arranged for the parties available cash assets to be divided equally between himself and the Mother.

8. It is the Mother’s evidence that leading up to and after the date of separation, she and the Father had discussions about she and the children relocating to Town B and that the Father agreed to the relocation.

9. It is the Mother’s evidence that the Father supported her travelling to Town B to look at rental properties for she and the children as well as appropriate schools by looking after the children whilst she was in Town B and ensuring sufficient funds were transferred to her account in order for her to pay for a bond, the first months’ rent on a rental property.

The Parties’ Submissions

The Father

1. It is the Father’s submission that the Mother’s relocation with the children to Town B was done unilaterally and in the full knowledge that he opposed such relocation.

2. It is submitted on behalf of the Father that it is in the best interests of W, X, Y and Z that they should return to Town A as this is where they were born, where the two eldest children attend school and have always attended school until very recently, where their friends and the extended paternal family, and particularly the paternal grandparents with whom they have a very close relationship live, and where they can live in the former matrimonial home which is the only home that they have known all their lives.

3. The Father adamantly denies the Mother’s allegations that she and or the children have been victims of severe family violence or any family violence at his hands.

4. The specific instances of violence set out in the Mother’s affidavit which include an allegation that he head-butted the Mother in or around 2017, that he came and stood over her on the night before the physical separation of the parties and that he made a gesture slitting his throat to her on or around 17 May 2020 are strongly disputed by him.

5. The Father also strongly disputes that W, X, Y and Z have been exposed to any violence by him to them or in their presence. It is the Father’s evidence that he has a close and loving relationship with all the children and that he does not pose any risk to them. He argues that the Mother leaving the children in his sole care for many days in April and May is clear evidence that she does not believe that the children are at risk of harm in his care.

6. It is therefore the submission of the Father that the question of whether the Mother and the children be permitted to relocate to Town B is one that cannot be decided on an interim basis and requires, as stated by Justice Boland in Morgan & Miles (supra) a “full investigation” which can only occur at final hearing. The Father further submits that this is not a case where there is a level of emergency that would justify a child’s best interests being determined in an abridged interim hearing.

7. It submitted on behalf of the Mother that if this was a matter where the Mother had unilaterally relocated with W, X, Y and Z to Town B she would have real difficulty in resisting the Father’s application that she and the children return to Town A pending a final hearing on whether such relocation is in the children’s best interests.

8. It is submitted on behalf of the Mother that this is not the circumstances in this matter.

9. It is submitted on behalf of the Mother that the Father was fully aware of her wish to relocate to Town B with the children in the lead up to and subsequent to the parties’ separation and that he consented to or acquiesced to such relocation. It is submitted on behalf of the Mother that this is shown by the Father making funds available to her for the payments of the bond and rent for a property in Town B and his cooperation in caring for the children whilst she travelled to Town B throughout April and May in order to put the appropriate arrangements in place.

1. It is submitted therefore that the principles enunciated in Morgan &Miles (supra) are not applicable to this matter given the parties had consulted and agreed to a course of action in relation to the arrangements of their children following separation and that the Mother had  put in place the arrangements that reflected the agreement reached by them.

2. It is submitted that it is not appropriate that subsequent to the Mother acting on the parties’ agreement that she and the children would relocate to Town B, the Father be permitted to change his mind and completely disrupt the arrangements for the children that had been appropriately put in place following that agreement.

3. It is submitted on behalf of the Mother that if the Father wishes to pursue his application that the children return to the Town A/City F area, he be permitted to do so at a final hearing. However in the interim, the arrangements agreed to by the parties should remain in place, she and the children should remain living in Town B and the children should not be subjected to any further disruption to their lives.

4. The written submissions filed on behalf of the Mother addressed at some length the section 60CC factors relevant to the best interests of the children. Considerable emphasis was placed on the Mother’s allegations that she and the children had been exposed to violence at the Father’s hands and the risk this poses to she and the children.

5. However, in the oral submissions made on behalf of the Mother, the Court was advised the Mother believes the Father to be “good dad” when sober and that if there is a restraint in relation to him not consuming alcohol when with the children he would not pose a risk to them. The Court was advised that if such a restraint were made, the Mother would support children spending unsupervised time with the Father.

Conclusion

1. The submissions made by both parties’ counsel is that the starting point in determining this urgent interim application relates to whether the Mother’s and the parties’ four children W, X, Y and Z’s move to Town B was done unilaterally and without the consent of the Father or whether it was done on the basis that the Father had acquiesced to that move and then had a change of heart after the Mother had acted on their agreement that she and the children would relocate.

2. Whilst the Father concedes that he was aware of the Mother’s wish to move to Town B and that in principle, he had no apposition to her moving to Town B if that is what she wished to do, he at no time agreed to W, X, Y and Z relocating with her.

3. The evidence before the Court is that between the date of separation being 2 May 2020 until 16 May 2020, the communication between the parties was quite amiable and that the Father was genuinely attempting to avoid litigation and reach agreement with the Mother to resolve matters between themselves.

4. The recording of the discussions between the parties on 5 May 2020 is quite illuminating.

5. The conversation takes place in the former matrimonial home and the parties’ youngest child appears to be playing happily in the background. The parties speak sensibly, appropriately and amiably. They discuss property matters including the division of furniture. The Father suggests that the Mother should not buy furniture when she can take some with her from the matrimonial home. The Mother is clear that she wishes to move to Town B. The Mother tells the Father on more than one occasion that he can oppose her moving with the children to Town B and that if he does so, she will not be able to do so without the permission of the Court. In response to this, the Father consistently tells her that he is as yet to obtain legal advice, that he does not know what he will do and that they should slow down and not rush any decisions until they have both had an opportunity to obtain advice or they can reach agreement between themselves. At no time in this discussion, which continues for some 26 minutes, does the Father agree that the Mother can move with the children to Town B.

6. Whilst the Father denies the substance of the allegations made by the Mother in relation to what occurred on 17 May 2020, on the Mother’s evidence she would have known that at least from that date the Father did not agree to her moving to Town B with the children or taking any of the parties’ chattels with her.

7. On 20 May 2020 the Father’s solicitors sent the Mother an email in which it was made very clear that the Father did not agree to her relocating to Town B with W, X, Y and Z.

8. It is the Mother’s evidence that she had initially planned to relocate to Town B on 28 May 2020 but that she brought that move forward to 21 May 2020. It is her evidence she did so as the result of her concerns about her safety and that of the children following the incident on 17 May 2020. However, the Mother obtained a Family Violence Safety Order on 17 May 2020 for her protection and that of the children which prohibited the Father from entering the former matrimonial home or approach the Mother and the children.

9. In support of her evidence that the Father had consented to the move to Town B, the Mother relies on the Affidavit of Ms H filed 21 June 2020. In paragraph [11] of her Affidavit, Ms H states that in early to mid-April 2020 she visited the Mother and the Father was present and was drinking. She recalls the Mother saying that she was going to move to Town B and that she (Ms H) suggested to the Father that he should assist the Mother in the move including helping settle the children, seeing their new school and meeting new people. She further deposes to the Father indicating that he would agree to that move and would do anything to make the Mother happy.

10. Given the late filing of this affidavit, the Father was not able to respond by way of an answering affidavit. Through his Counsel the Father denied that there were any discussions about the Mother and the children relocating to Town B on this occasion and that his recollection of the discussion was that he and the Mother were talking about taking a week away together to Town B to get away.

11. When the Father’s solicitors wrote to the Mother on 20 May 2020 to advise the Father did not consent to her relocating with W, X, Y and Z, the explanation given for her move by her solicitors on 26 May 2020 was that she was fleeing severe family violence and not that the Father had consented to her and the children’s move to Town B.

12. There is no doubt that there were some discussions between the parties about the Mother wanting to move to Town B. There was an element of cooperation from the Father in relation to the Mother’s aspirations to move to Town B by his making funds available to the Mother when the parties separated and in his caring for the children when the Mother went to Town B on several occasions. I am satisfied however that there is no evidence before the Court that supports the Mother’s contention that the Father agreed to the Mother taking W, X, Y and Z to Town B so soon after separation.

13. The evidence is very clear that at least from 17 May 2020 the Mother was fully aware that the Father did not agree to the relocation given the alleged incident on that date and the email sent to the Mother by the Father’s solicitors on 20 May 2020. Despite this, the Mother moved to Town B on 21 May 2020.

14. I am therefore satisfied that the Mother’s relocation to Town B with W, X, Y and Z on 21 May 2020 was done without the consent of the Father.

15. As was stated by Justice Boland in Morgan & Miles (supra), in cases involving relocation and in particular where there has been a unilateral relocation, it is highly desirable that absent issues such as abuse or violence and except on cases of emergency, “the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing.’

16. It is the Mother’s evidence that she was the victim of various family violence incidents to which W, X, Y and Z were also victims or to which they were exposed.

17. There is currently an interim ex parte IVO in place for the protection of the Mother and the children. The IVO hearing returns to the Magistrate’s Court on 29 June 2020. The Father strongly denies the Mother’s allegations of violence.

18. In the recording of the parties discussions on 5 May 2020 heard by the Court, the Father tells the Mother he was hurt by her saying she was unsafe with him. The Mother responded by saying she was sorry for saying that, that it was wrong of her and that it was “unfair”.

19. In the Mother’s Amended Response filed 22 June 2020, she seeks orders that W, X, Y and Z spend time with the Father at the home of the paternal grandparents with the paternal grandparents to be in substantial attendance. The Mother’s evidence in her affidavit material was that such orders are necessary because of the risk the Father poses to the children, especially when he has been drinking.

20. In his oral submissions on behalf of the Mother, her counsel told the Court the Father is not a risk to the children when he is sober. Counsel advised the Court that the Mother wanted the Father and the paternal grandparents to spend regular time with W, X, Y and Z and that any concerns that she has in relation to the Father’s care of the children would be alleviated by an order restraining him from consuming alcohol whilst they are in his care and with such an order there would not be any need for the Father’s time to be supervised.

21. The only independent evidence of the parties’ parenting capacity is that contained in the affidavit of Ms G sworn and filed 18 June 2020 by the Mother. Having deposed in paragraph [4] that she has known both parties for “several years”, Ms G states at paragraph [7]:

    “I consider both Ms Kaldas and Mr Kaldas to be responsible, caring and loving parents. At no time have I had concerns about either Ms Kaldas or Mr Kaldas’ care of their children and would trust either of them to care for my own children.”

22. Whether the Mother was the victim of violence at the hands of the Father is a matter that cannot be determined at an urgent interim hearing given the contradictory evidence of the parties.

23. The recording of the conversation between the parties on 5 May 2020 and the concession made on the Mother’s behalf by her counsel at the hearing of this matter are such that I am not of the view that the alleged level of violence can be described as “severe” or gives rise to a case of emergency.

24. It is submitted on behalf of the Mother that it is in W, X, Y and Z’s best interests they be allowed to remain in Town B pending a final hearing in this matter. She argues they have settled well into their new life and to uproot them yet again by making them return to Town A would be unfairly disruptive to them, especially if they were permitted to relocate once the matter is determined on a final basis.

25. It is further submitted on behalf of the Mother that W, X, Y and Z will be able to spend regular time with the Father and paternal grandparents and that they will easily manage the 800km travel as they are “country children” used to travelling long distances.

26. These parties only separated on 2 May 2020. Less than three weeks after separation, and knowing that the Father did not consent to her doing so, the Mother moved W, X, Y and Z 400km away from their home, their school, their friends, their much loved paternal grandparents and from their father.

27. It is not possible to determine at an urgent interim hearing whether such a move is in W, X, Y and Z’s best interests. That can only be determined at a final hearing where there can be a full investigation of the evidence.

28. To allow W, X, Y and Z to remain in Town B on an interim basis will by default allow them to relocate.

29. Whilst the Mother argues that a return to Town A will be disruptive to them, it is the Court’s view that taking W, X, Y and Z from their home, their school, their community, their extended family and most importantly their father, less than three weeks after their parents separated, was a much greater disruption.

30. I am satisfied that W, X, Y and Z’s best interests are met at this time by orders that require the Mother to return them to Town A and orders will be made accordingly. Whilst this is not where the Mother wishes to live, it is the only home the children have known. It will enable them to have the stability of their home, school and community and spend regular and substantial time with their father and paternal grandparents whilst they adjust to their parent’s separation pending a final determination of this matter.

31. Given the Court’s decision that W, X, Y and Z return to live in Town A, it is a matter better dealt with in the Mildura circuit of the Federal Circuit Court. Fortunately, there is circuit in Mildura next week.

32. Accordingly, an order will be made adjourning this matter to the Mildura circuit and it will be listed next Tuesday 30 June 2020 at 10.00am before Judge Boymal for the making of interim parenting and property orders.

I certify that the preceding seventy six (76) paragraphs are a true copy of the reasons for judgment of Judge Bender

Associate: 

Date: 26 June 2020