Keavney & Mohlis

[2021] FCCA 396

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:

AMS v AIF (1999) 199 CLR 160

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 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

BACKGROUND

1. This case concerns a dispute as to interim orders sought concerning X (‘the Child’) who is now 12 years of age.  The Applicant Father Mr Keavney (‘the Father’) seeks an order that the Respondent Mother Ms Mohlis (‘the Mother’) relocate her and the child's residence closer to where the Father lives.  The Mother opposes that order and seeks interim and final orders that leave existing orders in place.

2. The child lives with the Mother and by court order spends each alternative weekend during school term with the Father as well as school holiday time.  The Father is aged 45 and lives at Town B, a country town in Victoria.  He conducts his own business.  He continues to reside in what was the former relationship home.  The parties never married.  The Mother is aged 44 and now lives in a Victorian country town about three or three and a bit hours away from where the Father lives. 

3. The parties commenced cohabitation in 2006 and separated in January 2014 when the Child was three.  Final parenting orders were made on 19 September 2017 (“the 2017 Final Orders”).  In April 2020 the Mother moved from where she lived, about two hours from the Father's home, to another country town, Town C, another 100 or so kilometres and a further hour and a bit travel away from the Father's home and away from the court ordered changeover place, the town of Town D.  Town D is another country town roughly in the middle of where the parties lived at the time of the 2017 Final Orders.  The Father asserts that the Mother moved and changed the Child's school without consultation with him and in breach of an order that required consultation 28 prior to an intended move.  He alleges that he did not learn of the move until June 2020 and then was not able to issue proceedings, with the difficulty of COVID-19 times, until 16 October 2020.

4. The matter was returnable before me in a duty list on 7 December 2020.  This matter was one of 13 matters listed before me that day.  Many of them had some factual density and complexity to them.  I was able to commence hearing this matter at 4:17pm and the matter concluded at 5:07pm.  I did not make orders or give reasons that day and told the parties that I was going to think about the matter a bit longer.  In the meantime the 2017 Final Orders continue to apply. 

5. On the morning of the hearing the Father slightly changed his application to seek the continuation of the 2017 Final Orders but that on a before 25 January 2021, about 7 weeks away, the Mother do all things necessary to return herself and the child to the area she had moved from in April 2020, the Region E area.  The Mother and the child continue to live at Town C where they moved to.  In addition in the circumstances where I reserved my decision the Father sought that the matter be listed for mention in March, effectively to enable the parties to contemplate their positions including as to whether further applications would be pursued and whether a family report would be required after they knew my decision.  I will list the matter on 25 March 2021 unless the parties by agreement seek the vacation of that date.

6. In this case the Father relied upon an Initiating Application, Notice of Risk and affidavit filed 16 October 2020.  The Mother relied upon and affidavit filed on 13 November 2020.  In addition Child Protection (then under the Department of Health and Human Services) responded to the Notice of Risk filed by the Father and provided a short report.  I take all that material into account.

7. The Mother's case was that the Father had been informed of her move to Town C in April 2020, that is before the move.  It was also the Mother's case that she proactively coordinates regular time and phone calls between the child and the Father and from time to time has accommodated requests to change locations alternative to the usual midway pickup point at the Father's request.  She further asserts that she regularly drives additional distance to save the Father having to drive the full distance to the mid-point and to make the trip more comfortable for the child.  She asserts that Town C (the town she has moved to) to Town F (the town where the Father has his workshop a small distance from his home) is only a further hour of travelling for the child from the court ordered changeover point of the town of Town D.  The Mother sought to keep Town D as the changeover point.

8. It is the Father's case that the additional travel involved will lead to circumstances of the Mother asserting that the current orders are unworkable and too much trouble and travel for the child.

9. The Mother rebuts that assertion and says that the additional travel for the child is only an additional hour or so each way and that she will undertake the additional travelling.  She says that the distance is not such as to limit or prohibit the alternative weekend and school holiday time and that the travel for the Father will be the same.  The Mother asserts that frequent and lengthy travel is part and parcel of her work.  She is familiar with travelling extended distances through the area where she now lives necessary to accommodate the Town D changeover.  The Father's counsel asserted the Mother had a sense of entitlement or moral superiority in terms of her relationship with the Father.  The Father’s case is that the Mother moves and changes school too often and disregards the relationship between the child and the Father.  The Mother took issue with that and asserted that she had cooperated and promoted the child's relationship with his father and that promotion had worked successfully and would continue to do so.

10. The Mother asserts the child's time with his Father has not changed or been impeded and he will continue to see his Father as stated in the final orders.   The Mother's affidavit then sets out circumstances that indicate from her point of view what were good reasons for her to relocate her residence including convenience of work, convenience of the relationship she had at the time and convenience for her other adult children to rebut the suggestion she had moved to hinder the Father’s relationship with the Child.  Her affidavit also repeated the allegations of abuse during the relationship and expressed her opinion in response to the Father's opinion that if the Mother did not relocate back to where she had been living that it would be in the child's best interest to live with the Father.  The Mother asserted that this was the Father continuing his behaviours of coercive control over the child and herself and her two eldest children.  She then set out that returning to the area where she had been living would inflict severe financial hardship upon her.  It was also part of the Mother's case that the child was now doing better at the school at the town she had moved to than he had been previously.  This was notwithstanding the Father's allegation that the child's education was being restricted by the Mother's frequent moves from town to town and school to school. 

    THE APPLICABLE LAW

11. This is an interim hearing and I apply the guidelines of the authorities including paragraph [81]-[82] of Goode & Goode [2006] FLC ¶93-286 which are as follows:

    [81]In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

    [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)-(k)(relate to the presumption of equal shared parenting responsibility and the consequences of that)

12. I do not need to consider the section 61DA of the Family Law Act 1975 (Cth) (‘the Act’) presumption of equal shared parental responsibility. The 2017 Final Orders provide for the parties to have shared parental responsibility and they both told me, and I accept, that “equal shared parental responsibility” was intended and I proceed on that basis. The consequences of equal shared parental responsibility are set out in section 65DAA of the Act and must be considered unless there is a consent order. This is not a consent order but the time to be spent arrangements are not in dispute. I have considered section 65DAA including section 65DAA(5)(e). The most significant matter is that the parents agree, at this point, as to the time to be spent with the Father. I take into account that the Father's proposal is more likely than the Mother's to promote the concept of section 65DAA(3)(b)(i), “the time the child spends with the parent allows the parent to be involved in: (i) the child's daily routine”. However the issue is where the child should live with his Mother.

13. I am assisted by the discussion of competing interests where relocation is sought on an interim basis in Franklyn & Franklyn [2019] FamCAFC 256 (‘Franklyn’), Watts, Austin & Rees JJ, at [26]-[28] and reproduce that here:

    [26]Before dealing with these grounds of appeal individually, it is worthwhile recalling the statements of principle proscribing the power to make orders which are, in effect, mandatory injunctions, forcing parents to live in places against their will so as to fulfil the statutory mandate to accord paramount importance to the children's best interests.

    [27]There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children's ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent's move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.

    [28]While the children's interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U [2002] HCA 36; (2002) 211 CLR 238 ("U v U") at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) [2007] FamCA 1365; (2007) FLC 93-350; Zanda & Zanda [2014] FamCAFC 173; (2014) FLC 93-607 at [132]- [136]). Only when the children's welfare would be adversely affected must a parent's right to freedom of mobility defer to the paramount consideration of the children's best interests (see U v U at 262).

14. Freedom of movement was recently raised in Gerner v Victoria [2020] HCA 48 (‘Gerner’), a case concerning the validity of the Victorian “lockdown” regulations authorised by Victorian public health legislation.  There the High Court dismissed the plaintiff's case that there was an implied freedom of movement in the Australian Constitution.  At [10] the High Court observed:

    At common law individuals may move about as they see fit.  But that freedom is subject to the laws of the land.

15. Hence parents enjoy as much freedom to live where they wish as is compatible with their obligations with regard to their child or children and the laws of the land, see Kirby J in AMS v AIF, cited in Franklyn, at [191]. The constitutional law principles discussed in Gerner do not conflict with the principles summarised in Franklyn.  In any event I am bound by Franklyn.

16. 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)

17. 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])

18. In that case the Full Court then referred to, repeated and adopted paragraph [74] of Morgan & Miles cited above.

19. 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

20. 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. 

21. 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. 

22. The Mother points to a text message screenshot from 28 April 2020 where the exchange was as follows:

    Sunday, 19 April 2020

    Father:           Hi, is 6pm okay for change over tonight? 

    Mother:          Sure, no worries.  Thanks

    Tuesday, 28 April 2020

    Mother:Hey, we're in the middle of moving house.  Might have to miss this weekend while we get organised.  X has his own room now and a lot more space to ride his bike, so can you bring it down for him at next swap over please? 

    Father:           No worries, get him to call me later? 

    Mother:          Sure will do, as soon as he finishes his home school lessons for today.

23. The Mother also points to another text message exchange of 11 June 2020 as follows:

    Mother:Are you having X this weekend?  Is there a reason you can't ring him at least once a week? 

    Father:           Yes, he told me he wanted to come up this weekend? 

    Mother:I will drop him at Mums tomorrow.  You will have to drive them back to Town D Sunday night.  X doesn't need to be the one told to ring you all the time of either, try setting the example.  Also, no correspondence from your solicitor, do you have a court date yet? 

    Father:           Cool will do, what are we going to court over? 

    Mother:Friday 8th May.  You told X you were initiating it and lectured him in the car about it until he cried.  It's ok, you forget these things, we know.  He will be there by 5pm Friday and school holidays is coming up.  He will be right for the second week to come up to you for a week, if that suits.

1. In discussion with me in the Mother asserted that in addition to the April text message referring to “we're in the middle of moving house” there was a telephone discussion with the Father whereby she told him of the intended relocation to Town C.  There is no mention of that telephone conversation in the Mother's affidavit which on the face of it has been put together carefully.  It is a total of 32 pages and contains eight exhibits and the text of that responsive affidavit runs to 34 paragraphs.  The combination of the Mother's occupation, the manner in which she addressed me, and the nature of the affidavit prepared by the Mother herself demonstrate that the Mother is an intelligent, capable and articulate woman. 

2. On balance I think it is unlikely that the Father was informed of the move to Town C by telephone before the move, did not challenge the move, and then issued proceedings in October, 5 months later.  However I do not find on this interim hearing that the Mother did not inform him.  But I do not find that she did inform him.  The parties have not been cross examined about this matter.  I am unable to make a finding on the balance of probabilities about that one way or the other on this interim hearing.

3. Hence the matters that are agreed on not disputed include at least the following:

   (a)The Father has continued to see the child each alternate weekend and for school holidays since the Mother's move to Town C;

   (b)The Mother has undertaken and will undertake the additional travel;

   (c)That the child will, each weekend of his time with his Father, spend about 2 to 2.5 hours more in travel in a motor car in the care of his Mother;

   (d)That the move to Town C makes it more difficult but not impossible for the Father to be involved in the child's school events and extra-curricular activities;

   (e)That the Mother is an experienced and regular driver in her employment;

   (f)That the Mother did not advise or confirm advice of her move to Town C in writing or email or text message;

   (g)That the change of school was not discussed between the parties (on the Mother's case the Father would have been able to infer that this would occur);

   (h)That the child has changed school a number of times after separation to accommodate the change of the Mother's residence;

   (i)That the Father's time with the child has worked well enough to date;

   (j)That the Mother did not respond to the letter from the father's solicitor (annexure 2 dated 31 August 2020) enquiring about the said to be unilateral move.

4. There are many matters the parents disagree about.

5. Relevant section 60CC matters include the following. I do not have evidence of the child's views but in this case, if I did, would only place a little weight on them on an interim hearing of this nature. Where the child and his Mother live are decisions for the parents. The parties do not dispute that the child's relationship with each parent is appropriate. The Father's case is that he has taken every opportunity to be involved in the child's life and the Mother asserts that he has chosen not to be involved in school activities and that she has undertaken all of those matters. I find that the Father has, at least mostly, taken every opportunity to spend time with and communicate with the child. I find that both parents have, at least mostly, fulfilled their obligations to maintain the child. I find that I am unable to ascertain on this interim hearing what has been the effect on the child of the Mother's move last April. I will address the effect of the change the father seeks as well as the practical difficulty of that change below. I find that both parties have an adequate capacity to provide for the child's needs. I do not have evidence of the cultural or other aspects of the child's background: I proceed on the basis that he is a 12 year old boy negotiating life at a new school and between separated parents as best as he is able. I address the attitude to the child and the responsibility of parenthood below.

6. The Mother alleges and the Father denies a history of significant family violence during the relationship and a family violence order has applied in the past but none is current now.  These are serious matters but I am unable, on this interim hearing, to make any finding but I do not dismiss the allegations or the risk inherent to the child if the allegations are true.  However that risk does not inform the decision I have to make at this point.  I note recent reports to Child Protection and protective concerns did not figure in submissions.

7. I am asked to make, and can only make, an order until further order.

8. The matters I place the most weight on is the fact that the time provided in the 2017 Final Orders can continue and the inevitable significant impact on the child of his Mother being compelled to re locate their home back closer to the Father.  This change is likely to create profound unhappiness and upheaval in the Mother's, and hence the child's home.  Such unhappiness is likely to significantly impact on the child.  I must balance that against the impact of the additional travel for the child each alternate weekend and the impact of that on him.  He will be more tired at the start and end of his time with his Father than if the time the travel was as before, that is some one to one and a half hours more each way.

9. If the Father's case is correct: that is the Mother does not support the child's relationship with him and does not understand the importance of that relationship and is cavalier about the impact of her frequent unilateral moves further away and change of school (both without informing the Father), then that would seriously impact on my assessment of her attitude to the responsibility of parenthood.  An intrinsic part of the responsibility of parenthood is the manner in which the child's relationship with the other parent is supported and promoted.  On this interim hearing I cannot make a finding that the Father is correct.  The Mother's preparedness to do the extra travel and the agreed history that she has mostly and at least recently complied with the time ordered contends against that conclusion.  But I do not on this interim hearing find so, one way or the other.

   CONCLUSION

10. Hence for all these reasons I will dismiss the Father's application for an interim order for the Mother and the child to relocate.  The existing order provides:

    4.That the parties provide each other with at least 28 days notice of any intention to relocate from their current residences.

11. In the circumstances of this case I am considering amending that order to reinforce section 65DAC of the Act and provide as follows:

    #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 by telephone or in writing, text message or email and make a genuine effort to come to a joint decision.

12. However the parties are not on notice that I am considering such order and I will, on the delivery of these reasons give them the opportunity to make brief submissions about my proposed order.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       5 March 2021