FEDERAL CIRCUIT COURT OF AUSTRALIA
Keavney & Mohlis [2021] FCCA 396
File number: DGC 3519 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 5 March 2021 Catchwords: FAMILY LAW – interim parenting – relocation – unilateral relocation – where the father alleges the mother has unilaterally relocated – where the mother has changed the child’s school – where father seeks for mother to relocate – interim application dismissed Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA, 65DAC. Cases cited: Franklyn & Franklyn [2019] FamCAFC 256
Gerner v Victoria [2020] HCA 48
Goode & Goode (2006) FLC ¶93-286
Morgan & Miles (2007) FLC ¶93-343
Stringer & Nissen (No. 2) (2019) FLC ¶93-922
Number of paragraphs: 35 Date of hearing: 7 December 2020 Place: Melbourne Counsel for the Applicant: Mr P Harrison Solicitor for the Applicant: Seawater Legal Solicitor for the Respondent: Appeared In Person ORDERS
DGC 3519 of 2020 BETWEEN: MR KEAVNEY
Applicant
AND: MS MOHLIS
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
5 MARCH 2021
THE COURT ORDERS THAT:
1.The Father’s application for interim orders filed 16 October 2020 in relation to the Mother and child’s relocation be dismissed.
2.Order 4 of the orders made 19 September 2017 be discharged.
3.The parties provide each other with at least 28 days’ notice of any intention to relocate from their current residences and/or to change or select the child's school in writing, text message or email; and
(a)the other parent respond in writing, text message or email within 14 days; and
(b)before acting on such intention the parent intending to change residence or school consult with the other parent in writing, text message or email and make a genuine effort to come to a joint decision.
4.The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 25 March 2021 at 9.30am for Mention.
AND THE COURT NOTES THAT:
A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Keavney & Mohlis is approved pursuant to s.121(9)(g) of the Family Law Act
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CaseChat Overview and Summary
The court was required to determine whether the father's application for interim relocation orders should be granted. This involved considering the principles governing unilateral relocations and the court's discretion in interim parenting matters, particularly in light of the child's best interests and the parents' statutory obligations.
O'Shannessy J dismissed the father's application for interim relocation orders. The court applied principles from *Morgan & Miles* and *Stringer & Nissen (No. 2)*, which establish that while a unilateral relocation does not fetter the court's jurisdiction, it can be a factor in determining the child's welfare. The court noted that a parent's failure to consult and make a genuine effort to agree on moves that significantly affect the child's time with the other parent, as required by section 65DAC of the *Family Law Act 1975* (Cth), can be detrimental. However, on the interim hearing, the court could not make a finding that the mother had acted improperly in supporting the child's relationship with the father or in her approach to relocation and school changes. The court also ordered that existing orders regarding the discharge of a previous order and the provision of notice for future relocations and school changes be amended to reinforce the consultation requirements of section 65DAC.
Orders
Orders of the court
DGC 3519 of 2020
BETWEEN:
MR KEAVNEY
Applicant
AND:
MS MOHLIS
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
5 MARCH 2021
THE COURT ORDERS THAT:
1. The Father’s application for interim orders filed 16 October 2020 in relation to the Mother and child’s relocation be dismissed.
2. Order 4 of the orders made 19 September 2017 be discharged.
3. The parties provide each other with at least 28 days’ notice of any intention to relocate from their current residences and/or to change or select the child's school in writing, text message or email; and
(a) the other parent respond in writing, text message or email within 14 days; and
(b) before acting on such intention the parent intending to change residence or school consult with the other parent in writing, text message or email and make a genuine effort to come to a joint decision.
4. The matter be adjourned to the Federal Circuit Court of Australia at Melbourne on 25 March 2021 at 9.30am for Mention.
AND THE COURT NOTES THAT:
A. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
In Morgan & Miles (2007) FLC ¶93-343, Boland J sitting as the Full Court, (‘Morgan & Miles’) made some observations, which are binding on me, about unilateral relocations and interim hearings including;[55]It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court's discretion in determining a child's best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.[74]The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.[75]It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significantly more difficult for that child to spend time with the “left behind” parent.[77]The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the "left behind" parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.(emphasis added) In Stringer & Nissen (No. 2) (2019) FLC ¶93-922, the Full Court at [26] observed:…while it is undoubted that the Court's function is not fettered by a unilateral relocation by a parent, the determination of whether such a move is in a child's best interests involves a careful consideration of all of the factors relevant to that determination (see Morgan & Miles… at [55]) In that case the Full Court then referred to, repeated and adopted paragraph [74] of Morgan & Miles cited above. By application of these principles and the relevant circumstances, the parents who “move first and see what happens”, are from time to time compelled to relocate the child's residence back to the area from hence they moved where that unilateral move effects the child or children's welfare and relationship with the other parent.THE MOTHER’S RELOCATION Central to this dispute is whether the Mother moved the child’s school and home without consulting the Father or whether, as she asserts, he was informed of both and hence provided him with the opportunity, albeit limited, to consult. By the delay in the delivery of these reasons and orders it is apparent that the child will have resumed the 2021 school year at the “new” school that he had been attending (including by home schooling) since April 2020. The circumstances that the child has commenced the 2021 school year at the same school is a matter of only little weight. If it was in the child’s best interests to compel his Mother to relocate her and the child's, residence on an interim hearing I would do so.