KEMP & KEMP
[2010] FMCAfam 333
•23 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KEMP & KEMP | [2010] FMCAfam 333 |
| FAMILY LAW – Interim parenting order – recovery order sought – restraint on unilateral relocation – orders for return of the children to Victoria – interim order for sole use of the former matrimonial home. |
| Family Law Act 1975 (Cth), ss.60B, 60CC, 60CC(2)(a), 60CC(2)(b), 60CC(4), 68B |
| Evans & Downs [2009] FMCAfam 1431 Goode & Goode [2006] FamCA 1346 C & S [1998] FamCA66 Re Kay [1996] FamCA 55 Morgan & Miles [2007] FamCA 1230 |
| Applicant: | MR KEMP |
| Respondent: | MS KEMP |
| File Number: | DGC 254 of 2010 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 23 March 2010 |
| Date of Last Submission: | 23 March 2010 |
| Delivered at: | Dandenong |
| Delivered on: | 23 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Crowther |
| Solicitors for the Applicant: | Hayes Solicitors |
| Counsel for the Respondent: | Ms R. Bowen |
| Solicitors for the Respondent: | Quintessential Lawyers |
ORDERS
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
The wife return to Melbourne, Victoria with [X] born [in] 1994, [Y] born [in] 1998 and [Z] born [in] 2004 (“the children”) by 8 April 2010.
The husband have liberty to apply on 24 hours notice for a recovery order to issue in the event of non compliance with order (1) hereof .
Upon the return to Victoria pursuant to order (1) herein the children live with the wife.
Upon the return to Victoria pursuant to order (1) herein the children spend time with and communicate with the husband as follows:
(a)every second weekend from after school on Thursday until the commencement of school on Monday save when Monday is a holiday or non school day to the commencement of school on Tuesday;
(b)by telephone with all children each Tuesday and Thursday evening, between the hours of 5.00 pm and 7.30 pm;
(c)on the children’s birthdays, Father’s Day and husband’s birthday for a period of 3 hours as agreed between the parties, failing agreement from 4.00 pm to 7.00 pm;
(d)all such other times with the children as they may request from time to time as agreed between the parties;
(e)the husband’s time be suspended on the wife’s birthday and mother’s day for a period of 3 hours as agreed and failing agreement from 4.00pm to 7.00om if the children are in his care;
(f)orders 4(a),(b),(c) and (d) are subject to the child [X]’s wishes however the wife should encourage time spent between [X] and the husband.
For the purposes of changeover, the husband shall collect and return the children from the front gate of the wife’s residence (the former matrimonial home) but shall remain on the outside of the property.
The wife facilitate time spent in order 4(b) hereof and provide suitable, quite and private facilities in which the children can communicate with the husband in accordance with paragraphs 4(b) hereof.
The wife, until further order, have the sole use and occupation of the former matrimonial home located at Property L and that the husband be responsible for the payment of the mortgage and other outgoings in relation to the said property.
The children [Y] and [Z] attend [L] Primary School and that the child [X] attends such school as agreed by the husband and wife after proper consultation and discussion, all children are to commence school in Victoria the first day of term 2 and the parties sign all such documents and do all such things as is necessary to effect their enrolment at schools in Victoria.
The husband and wife attend upon Dr Timothy Entwistle for the purpose of psychiatric assessments and report with the parties to meet the costs equally.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Regional Coordinator, Child Dispute Services in the Dandenong Registry of the Family Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released as soon as possible before the adjourned date, and that:
(a)The Family Report to deal with the following matters:
(i)any wishes expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(ii)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(iii)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.
(b)The parties do comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Consultant.
(c)The solicitor for each of the parties (or, if unrepresented, then the party themselves) do deliver or cause to be delivered to the family consultant copies of the following documents:
(i)all relevant applications and responses filed by or on behalf of his/her client in the within proceedings;
(ii)all relevant affidavits filed by or on behalf of his/her client in the within proceedings; and
(iii)any intervention or restraining orders currently in force.
Pursuant to section 68L(2) of the Family Law Act1975 the said children be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such:
(a)Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer do file a Notice of Address for Service.
(b)Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
(d)The Independent Children’s Lawyer do prepare a Minute of the orders reflecting his/her preliminary view of what orders he/she will recommend be made as final orders at the final hearing.
Within 14 days the parties shall each make contact with the Family Relationships Centre in Frankston in order to arrange an assessment for appropriate interventions to assist with the current parenting dispute.
The parties shall each follow all reasonable recommendations of the Officer in Charge (OIC) of the Family Relationships Centre, including competing all recommended courses and accepting referrals to other agencies.
In order to facilitate the assessment the parties shall provide to the OIC of the Family Relationship Centre all of their respective Court documents including family and psychiatric reports.
The matter be adjourned to 3 November 2010 at 10.00 a.m. for final hearing (with an estimated hearing time of 2 days) at the Federal Magistrates Court of Australia at Dandenong.
The applicant do file and serve all further affidavits and other material to be relied upon by the applicant not later than 28 days prior to the trial.
The respondent do file and serve all further affidavits and other material to be relied upon by the respondent not later than 14 days prior to the trial.
The Independent Children’s Lawyer do file and serve all further affidavits and other material to be relied upon by them not later than
7 days prior to the trial.
All parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the trial date setting out the following:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events;
(c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the children (s.60cc factors);
(d)a list of other contentions relevant to the decision;
(e)whether the presumption of equal shared parental responsibility applies (s.61da), and if not the contentions relied upon;
(f)a list of the considerations relevant to considerations of equal and substantial parenting time (s.65daa);
(g)a list of other relevant considerations (including the relevant section number, eg. ss.60cg, 61f, 65dab, 65dac, etc); and
(h)the actual orders sought.
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
AND THE COURT NOTES THAT:
In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(i)the filing of documents;
(ii)the payment of any applicable filing, setting down, mediation or enforcement fee or fees; and/or
(iii)any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate Court officer, shortly prior to the final hearing date.
IT IS NOTED that publication of this judgment under the pseudonym Kemp & Kemp is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 254 of 2010
| MR KEMP |
Applicant
And
| MS KEMP |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application filed on Friday, 29 January 2010 by Mr Kemp (“the father”), against the Respondent Ms Kemp (“the mother”).
The father is seeking various parenting orders under the Family Law Act 1975 (“the Act”) in relation to the children of his marriage to the mother. The children are [X], born [in] 1994, [Y], born [in] 1998 and [Z], born [in] 2004 (“the children”).
More specifically, the father was seeking in the application (as filed) a recovery order in respect of the children. However as became clear during the course of the hearing which, as it transpired, occurred over many days, he was actually seeking an injunction directed at the mother to return the children from [S], New South Wales to Melbourne, Victoria.
At the interim hearing, the father relied on the following material that had been filed or tendered on his behalf:
·his application filed 29 January 2010;
·his affidavit filed 29 January 2010;
·a further affidavit filed 15 March 2010;
·an affidavit of Ms K filed 15 March 2010; and
·an affidavit of Ms C filed 22 March 2010.
There were also, as I indicated, tendered on his behalf, a number of exhibits marked respectively A1 through to A4.
The mother relied on:
·her response on 9 March 2010;
·an affidavit filed 9 March 2010;
·a further amended response on 12 March 2010; and
·an affidavit on 12 March 2010; and
·a further affidavit today 23 March 2010 which was sent by facsimile.
Also tendered on her behalf were two exhibits which were marked exhibits R1 and R2 respectively.
In broad compass, the mother opposed the orders sought by the father, and was seeking different parenting orders in relation to the children. More specifically, the mother was seeking interim and final orders that would allow her to remain in New South Wales with the children, and for the father to spend time with them during, inter alia, school holidays and also that this matter be transferred to the Newcastle Registry of the Federal Magistrates Court. In other words, the mother is seeking to relocate to New South Wales with the children, albeit retrospectively, given that she has already done so.
The father’s application was given a first return date of 15 March 2010 in the Court’s duty list. On that occasion, both parties were represented. Mr Crowther appeared for the father, and Ms Bowden appeared for the mother. The matter was stood down to see whether it was possible for it to be compromised. During the course of a busy duty list, the matter was mentioned again and Mr Crowther told the Court his client was pursuing his application.
On 15 March 2010 the Court made orders pursuant to section 11F of the Act for a family consultant to meet with the parties, the father in person and the mother by telephone on 17 March 2010. The matter was adjourned to that day. However, at the request of the parties, it was listed for mention not before 2.15pm.
By the time the matter returned on 17 March 2010 there had been more material filed and when the matter was mentioned, the parties were asked to prepare minutes, which they did, and these have been referred to earlier as the exhibits tendered on their behalf. They represented their client’s respective positions in the event that the children were ordered to return, and this is set out in exhibits A2 and R2 respectively or not to return in exhibits A3 and R1 respectively.
The mother’s solicitor provided correspondence from the children’s schools in [S]. The matter was stood down so the family consultant, who had met with the parties on 17 March 2010, could consider those exhibits and to speak to the school the two younger children were attending. Ultimately, because of this, and the commitments of the solicitors for the parties, the matter was stood over until today,
23 March 2010, for the delivery of the section 11F oral report, and submissions from each of the parties on the appropriate interim orders.
Today, Mr Crowther appeared again for the father, and Ms Bowden for the mother. Both parties had an opportunity to hear the oral report delivered to the Court this morning pursuant to section 11F, and there was an order made for the transcript of that report to be produced and placed on the file. Then the parties had the opportunity to make submissions in support of their respective positions.
Approach of the parties to application
In approaching this matter, I have had regard to the section 11F report, the material of the parties referred to earlier and the submissions made on their behalf. The parties were provided with a copy of the decision in Evans & Downs [2009] FMCAfam 1431, which I am satisfied accurately summarises the principles to be applied to the matter at hand. Both parties accepted the principles set out at paragraphs 37 to 68 of that decision which was an accurate summary of the approach the Court should take at this stage of this proceeding.
It was not suggested that the Court need to consider the mother’s application to transfer the proceedings if the decision was made that the children be returned. The mother’s position embodied in exhibit R2 was that, if that was the case, she would return to live with the children in Melbourne on the terms set out therein.
The father accepted this and as his position in exhibit A2 made this clear, that, if that was the case, the mother and the children would need to have sole use and occupancy of the former matrimonial home in [L] on an interim basis. He did not contemplate moving to New South Wales to spend time with the children there and his position, were they to be allowed to remain there, was set out in exhibit A3.
Background
Before turning to identify the issue before the Court today, it is appropriate to provide something by way of background. The father is aged 42 years old and the mother is around 36 years of age.
The children referred to above are the children of their 15 plus year relationship. The father is now [employed in the Engineering Industry]. The mother, at the present time, is living in the [S] area, and, in the past, it appears she has worked [in the Retail and Health Industries]. It appears the mother has an arrangement between herself and the Department of Community Services in New South Wales. However, that’s not clear on the material before the Court.
The parties set out the relevant uncontentious or agreed background facts in their respective affidavits. On the basis of that, the solicitors for each of the parties prepared an agreed chronology marked as exhibit A1 which provided that:
“1.Husband born [in] 1967.
2.Wife born [in] 1974.
3.Date of cohabitation 1991.
4.Date of marriage [omitted], 1994 in [B].
5.Child, [X] born [in] 1994 aged 15.
6.Child [Y] born [in] 1998 aged 11.
7.Child [Z] born [in] 2004 aged 5.
8.1991- middle of 2004 the parties reside at [B] in Victoria.
9.Mid 2004 – September 2008 [A] in Queensland.
10.September 2008 husband returns to Victoria, wife stays in Queensland with the children by agreement.
11.Early to mid December 2008 wife and children relocate to Victoria and rejoin the husband. Husband then leaves [occupation omitted] and obtains employment in [omitted]. On return to Victoria the parties initially reside with the husband’s parents for a short time. Then they move to the husband’s sister’s home in [H] then move to rental accommodation.
12.May 2009 commence construction of family home in [L].
13.May 2009 wife relocates to [S], New South Wales with the child [Z]. The boys remain living with the husband.
14.June/July 2009 school holidays wife returns with [Z] then returns to [S]. All parties spent time with all children.
15.Mid October 2009 wife returns with [Z] with maternal cousins and [J], who the wife is the legal guardian of for [Y]’s 11th birthday on [date omitted] 2009.
16.Disagreement on 18 October 2009. Parties argue, wife returns to [S] with all three children husband objects to boys going to [S].
17.Husband visits [S] for Christmas Day., Parties again argue husband returns to Victoria with [Y] and [Z] and [X] and the wife arrives in Victoria in mid January 2010.
18.Incident at the Property L home on 25 January 2010. police attend house, no charges laid. No Invention orders taken out. All children return to [S]. Husband objects.
19.29 January 2010 husband files an application and affidavit.
20.Wife served with the husband’s application on 6 February 2010.
21.Application for Apprehended Domestic Violence order taken out by the police on behalf of he wife on 22 February 2010 and relates to the incident on 25 January 2010 at the home in Victoria.
22.Wife filed Response and Affidavit on 9 March 2010.
23.Wife filed Amended response on 12 March 2010.
24.Husband filed Affidavit, affidavit in rely and affidavit of
Ms K filed 12 March 2010.”There are a couple of other matters to note. There are no existing parenting orders in place in relation to the children, and the father tendered (as an exhibit marked A4), a letter evidencing his earlier and unsuccessful attempt to have an application, seeking similar orders to that in the current matter, abridged in late 2009.
Otherwise it appears, it’s agreed, that in 2009 [X] was at [E] College, [Y] at [L] Primary, and [Z] attended kindergarten. It is also clear the children appear to have been enrolled in schools in the [S] area of New South Wales. The children are living in a home with the mother, one of her sisters and a number of other children who may or may not be related, or whom she may have some responsibility for pursuant to some arrangement with the New South Wales Department of Community Services or DOCS.
Save as otherwise indicated in exhibit A1, there are no other agreed or uncontested relevant background facts. The father maintains he did not agree with, and has not acquiesced to, the mother and the children’s move to New South Wales. The parties disagree about the level of the father’s involvement with the children prior to the move to New South Wales. Each party accused the other of responsibility for the palpable stress and emotional turmoil the children have suffered as a result of the events traversed in the chronology referred to above.
Finally, the parties disagreed over the circumstances surrounding, and the cause of the confrontation at the former matrimonial home in late January 2010.
The issue before the Court
As noted earlier the dispute today focuses on whether the children should be returned to Melbourne and thereafter, for the Court to consider whether the mother should be able to relocate with the children to New South Wales, or whether they should remain in Melbourne, or whether they should remain where they are. The consequence of either party’s order would be a decision as to who the children live with, and who and how they spend time with the other parent.
Oral report
As noted earlier, and pursuant to orders made on 15 March 2010, the Court has had the benefit of an oral report pursuant to section 11F today. Before turning to consider the relevant principles and the parties’ submission, it is timely to incorporate verbatim the oral report provided by the family consultant which was as follows:
“As outlined before, I spoke to Mr Kemp and Ms Kemp on Wednesday, 17 March, with Mr Kemp being interviewed in person. I first initially spoke to Ms Kemp on the phone, interviewing both parties separately and then giving feedback together. Ms Kemp is seeking – well, was seeking at the time that the children reside in [S], New South Wales, and see the father, as per their wishes, during school holidays only. But Mr Kemp is requesting a recovery order that sees the children return to Victoria, and was seeking shared care of the children at that time, last week. In terms of the children, Mr Kemp reported having a good relationship with all three of his children, prior to the separation, and that the children had close links and close bonds to their extended family, that is the paternal family here in Melbourne. According to reports by the mother, the children all wish to remain residing in her care and are somewhat fearful and angry at the father at present. Ms Kemp stated that five year old [Z] had expressed a desire to live with her most of the time, and with her father some of the time. Eleven year old, [Y], had reported to Ms Kemp that he wanted to stay with her and visit his father on school holidays only. Fifteen year old, [X], had informed her that he wished to remain living with her, and that he does not want to live with his father. According to the mother, [X] only wants to visit his father on holidays and stated that his father is able to text message him by phone, but not call him.
Ms Kemp also raised that [X] had threatened to hurt Mr Kemp if he returned to his care. These wishes should be viewed with some caution at this point in time, your Honour, as they were not directly from the children, they were from the mother. Evaluation of the assessment with both parties suggested that both Mr Kemp and Ms Kemp attended on 17/3/2010, with Mr Kemp presenting in person and Ms Kemp over the phone. Both parties were interviewed separately with feedback given together. Ms Kemp initially presented over the phone as a kind and loving mother who wants what is best for her children, however, became somewhat hostile during the feedback session with the father, and terminated the phone call. Mr Kemp presented as an intelligent man and concerned father. He appeared genuine in his belief that the children have been removed from an environment in which they were thriving. Both parties claim to hold different concerns for the children in the other’s care. Ms Kemp reports Mr Kemp is intimidating, manipulative and aggressive, while Mr Kemp raised concerns for the mother’s mental health. At present, it appears that contact between the children and the father had ceased, at the time of interview. This does not appear to be in their best interest and will require further consideration by the court. At the conclusion of the assessment, it appears that both parties hold contradictory views. At this stage, some of the father’s views appear to have been supported in affidavit material from his sister, Ms K, and the mother’s sister, Ms C, who is also
Mr Kemp’s sister-in-law. The mother’s version of events remains unsupported at this point in time by external material, and warrants further assessment. Of significant concern to me, your Honour, is information from both parties, and supporting affidavit material from the extended family, that suggests [X] engaged in physical violence against the father during the incident in question on 25 January 2010. This incident requires further evaluation as to the plausibility of both parents’ accounts, as they are quite varied. At this stage, the father’s version appears to have some supporting documentation, while there is no material to support the mother’s view at this point in time. I believe, your Honour, in the best interests of [X], [Y] and [Z], that consideration is made for the order of a family report, to further investigate both parties’ claims and the needs of the children, given that it is a relocation case. That contact with the father resume as soon as possible, either via phone or face to face in the interim. And the consideration of a psychiatric assessment for both parties be made, given suggestion of the mother’s mental health decline and report of violence by the father. And, if needed, I believe that subpoena of police information pertaining to the domestic violence incident reported on 25 January 2010, may be required. Now, would you like me to go through my conversation with the school?Yes, please?‑‑‑Okay. On Friday, 19 March 2010, at about 3.45, I contact Ms G, the Principal of [S] School, where [Z] and [Y] attend. She initially wanted to initiate contact with myself, as the family consultant, because she did not feel that information given to the court the previous day gave a balanced impression of the family and of the children. At that time, she said she answered the mother’s solicitor’s questions in regards to attendance and the children’s behaviour, but was not able to give a full description – as she was not present, I assume that another school representative was spoken to. Ms G reported that [Z] has had close consultation with her teachers in regards to her parents’ separation. She is attending her first year in prep this year. [Z] has stated to her teacher that she has been told by her mother that she is not allowed to be shared between her mother and her father, but that she would like to be shared between the two of them. Mr Kemp had contacted the school earlier this year, as indicated by himself during the interview. The principal stated that she had given permission, herself, for [Y] to speak to
Mr Kemp, as she felt that that was appropriate at the time, and [Y] had expressed a desire to do so. She stated that Mr Kemp was not inappropriate over the phone at all; she had the phone on loud speaker and heard the whole conversation. But Mr Kemp just wanted to talk to [Y] and tell him that he loved him. That his father did not talk badly of the mother at all. And she acknowledged that Mr Kemp became quite emotional over the phone, and so did [Y]. During that conversation, [Y] had said to Ms G, the Principal, that he did want to speak to his father, and that he wanted to speak to his father again, if he called. The principal said, during that conversation, that she had forgotten, regrettably, to take the phone off loud speaker; she had thought that she had hung up the phone call, but did not, and did not know that the father was listening to her comforting [Y] afterwards. She said that she told [Y] that it was okay to cry, and asked him, “If Dad calls again, would you like to speak to him?” And he said, “Yes, please.” The principal had said that, prior to this phone call, the mother had told her that the children were not speaking to their father, and that they did not want to speak to their father at the moment. In regards to [Y] and his behaviour at school, Ms G said [Y] initially had quite significant difficulty settling into the school initially, so that would have been at the end of last year. She said the school had to work quite hard in settling him into the school, and at one stage he was found hidden behind bags, curled up in a foetal ball and crying. She said that took quite considerable time to get him settled into the school, but this behaviour has now ceased and he appears to be well settled. In regards to the phone call – sorry, your Honour – previously, Ms Kemp had told the principal – or Ms Kemp, sorry – told the principal that she had instructed [Y] not to speak to his father again at school, if he called. Ms G had also indicated that [Y] had commenced counselling, at the father’s request; the father had contacted the school and asked for [Y] to commence counselling regarding the separation, and that he had been doing so at school. Ms G said that the mother was not aware of this counselling, because Mr Kemp had referred this, and the school policy was usually to deal only with the referring parent and not the other parent. So Ms Kemp was not aware that [Y] was in counselling at the school. In terms of the children at school, there is no behavioural issues with either of the Kemp children. Ms G said they are extremely bright children. [Y] is in an extension class, as recommended by his previous school, and she believes [Z] is also very bright and will be heading that way academically as well. Ms G raised concerns about the children’s living conditions at home, given that there is so many children living in the household. At present, there is seven children and two adults in a three bedroom home. Ms G raised concerns about the other children, the [N] children, who reside with the Kemp children, under the care of both Ms Kemp and her sister, Ms N. She said there are quite huge aggression and behavioural issues with the [N] children, and the school has had quite a lot of trouble with them behaviourally. There is a lot of aggression and violence with those children, and she raised some concern that the Kemp children were being exposed to this. In terms of Ms Kemp, she said she is doing all the right things. The children appear to be quite attached to her, and it is obvious that they love her. She attends canteen duty and is quite active in the school. The principal said that she would be sad to lose the children, but she believes they need access to both parents. And that is all that she said at this point in time, your Honour.In relation to the proposals, I agree that the children should attend counselling, as proposed, I think it was, by Mr Kemp. In terms of, I think it is R3, if the children are to remain in New South Wales, the father is seeking that they attend all school holidays with him. I feel that would probably not be in the children’s best interests as it would now allow them time with their peers and their family outside of school. I feel that if they were to remain in New South Wales, all of the school holidays would not be conducive to the children’s needs. Similarly, telephone contact every day, I feel, might be a little bit too much for children of their age. It is quite difficult to get children on the phone, and if they feel they have to speak to their father every day, as a rule, that might become difficult for the children. I feel that fortnightly/weekend, if they were to return to Melbourne, fortnightly/weekend contact with the father would probably be a good place to start, in the matrimonial home. I think that that would offer the children stability with their mother in that new environment, while also being able to see their father. At present, the request of five nights per fortnight from the father might suit the oldest two children, but with [Z] being in her first year of school, developmentally she will need more stability and consistency of routine. So initially, time on the weekend and a couple of overnights during the week to begin with might be too much for her. I am also concerned that time needs to be at the oldest children’s wishes. Without speaking to [X], I feel that he obviously will have hostility to his father, and I am not sure ordering him to see his father, if he does not want to, would be in his best interest. But, definitely, if he is open to that, time with his father would be ideal.
Now, you understand the two options open to the court, given that, at least in Victoria, term one school holidays start on Friday. Do you have any view, if the court does decide to order that the children be returned to Victoria, when that should be?‑‑‑I do believe it would be in the children’s best interests, if they are returned to Victoria, that they do return over the holidays, so that at least have a week to settle in to the new house, and to settle in to that environment with their mother, before commencing school. And I think, ideally, for the children commencing on the first day of term two would be in their best interest.
You are aware of – in terms of [Z] – how long she has been with her mother?‑‑‑Yes.
And with [X] and [Y], how long they have been in [S]. Do you – against the background that one of the orders sought is for them to be returned to Victoria – have any concerns about that, in terms of disruption?‑‑‑I do, your Honour. My understanding is that the two boys, [X] and [Y], resided with their father in Melbourne after the separation for roughly five months time, and they have been in [S] for the same amount of time. So at the moment, that is quite even. My concerns are, if the children are returned to Victoria, and on an interim basis, and then allowed to move back to [S] on a final basis, that would be quite disruptive to them, to their friendships, to their socialisation, and academically at school. That would be my only concern, that if it is a strong likelihood, which is undeterminable, obviously, at this point in time, that they will return to [S], moving twice would be quite disruptive. But in saying that, for the two older boys, they have attended school here in Victoria, they have friends here, and they have social connections as well outside of school. So it would be easier for them than [Z] to start back at school here. I think it would be less of a transition for the two older boys.
All right. You have indicated that you believe both counselling for the children and a family report is appropriate. In terms of the timing for both of those interventions, do you have a view as to when that should happen?‑‑‑Obviously, the family report would be in accordance to orders made and next court hearings. I would suggest it would be good to have them done soon, but it would also be, if the children are moved to Victoria, I would like to see them settled first, before they are interviewed, to allow them emotionally to settle down, without having to see new people and speak about how they are feeling and how they are coping. I think counselling would be ideal, if it commenced sooner rather than later. I feel the family report, possibly, would do better and serve all parties better, if the children were allowed time to settle. In saying that, children settle quite quickly, and it may only be a matter of a couple of weeks. Otherwise, if they are to remain in New South Wales, I do not see why – while it is fresh – it cannot be dealt with in a family report sooner.
Now, having regard to the restrictions that have been imposed on your report by virtue of the actions of the parties to these proceedings, in that you have not been able to meet or speak with the children, do you have any concerns as to the parties’ respective proposals?‑‑‑From what I gather, from information in the affidavit material from multiple sources and both parents, in terms of [Y], and from what I have gained from the school, he is wanting to live with mum at the moment – obviously, I do not know for sure, because I have not spoken to him – but wanting to see dad more. And for that to occur, it is likely to need to occur in Melbourne. So for him, I do not see an issue, other than adjusting back to school, and he will need the support of both parents in doing that positively. In regards to [Z], I feel her age – she would be quite adaptable, as long as her parents are on board and very supportive in her needs. As long as it is explained why they are moving, and that she is going to start a new school, all those things need to be explained to her, in order for it not to be scary for her. I have quite strong concerns about 15 year old [X] though, your Honour. In terms of material given and presented to me, he seemed to have quite a good relationship with his father prior to the separation, and prior to him moving to live with his mother. So I am not sure – I have no indication or any material – where that broke down or how, and how it got to be that violence was involved after that. So for [X] and his father, I think that relationship is going to need to be introduced a little bit more slowly, in accordance to this needs. And I feel he would also benefit from counselling, as there is obviously a lot going on for him, emotionally. The only other thing I wanted to add was my concern in regards to Ms Kemp having care or custody of 14 year old [J] in New South Wales. Ms Kemp, for various reasons, indicated to me that she did not feel comfortable or safe returning to Melbourne, because of Mr Kemp’s family. However, she also mentioned to me that she did not know if she would be able to move, because of DOCS and because of care of [J]. She said, yes, she does not know at this stage if she would even be able to move, or able to parent her children appropriately in Victoria, because of that expressed fear.
And you have seen the proposal embodied in R2?‑‑‑Yes, your Honour.
That if the children are ordered to be returned to Victoria, then they live with the mother in the former matrimonial home?‑‑‑Yes, your Honour.
And she have exclusive or sole occupancy for that purpose?‑‑‑Yes, your Honour.
Yes. All right. Nothing else?‑‑‑No, not at this stage.
Okay. Mr Crowther, Ms Bowden, I am conscious that I have asked, for reasons which are self evident, given the unusual circumstances of this matter, a number of questions of the consultant in the context of the oral report today. Do either of you wish to ask anything arising from those questions only?
Ms Dunn, you expressed some concern or reservation, whichever is the appropriate term, about [Z] having been away from her father for so long, and the reintroduction of her relationship with him. Is that correct?‑‑‑I do not have concern in regards to the introduction of her and her father, no.
All right?‑‑‑I have concern that the move, if not supported by both parents, will be quite distressing for her.
Yes, all right. Well, given that, you would be confident that, if there were a move back to Victoria, that a relationship between the little girl and her dad could be re-established?‑‑‑I believe so. According to instruction by the principal, [Z] has said that she would like to spend time with her father, yes.
Yes. And this might seem a pretty basic question, but I take it you will support that as being in [Z]’s best interests, that it be a reunification with the father?‑‑‑I think it would be in her best interest to have more time with her father, yes.”
Before moving on to consider the appropriate principles, I note that, amongst other matters, the oral report noted the consultants view about:
·the need for the children’s to have stability and routine;
·the mother was observed initially to present as kind and loving and then hostile; and
·that there was an absence of material corroborating her position and her allegations made.
The investigations with the school raised concerns about the mother’s behaviour, both in relation to the children and, in particular, to the father, as well as concerns about the best interests of the children, concerns about their current living arrangements and the manifest need for the children to see their father. There were also issues raised regarding the mother’s allegations needing to be viewed with considerable caution. That the children needed to see their father as soon as is possible, especially [Y] who is noted to have been observed by those he interacts with at school, as reported to the family consultant, to be particularly affected by the separation from his father.
Moreover, it was noted in view of the family consultant that, having regard to the material on the Court file, both [Y] and [X] had lived with the father for some months, that the situation in [S] had been in place for about the same time that they’d been living with their father, that, overall, given the adaptability, in particular, of [Z], that, whilst it is regrettable that there may have to be another change, the children could settle back in to a routine in Melbourne that would afford them the stability and the security that they so sorely need.
The law
Turning to the law or the principles that should be applied in the context of this matter, as set out earlier, I gratefully adopt, as an accurate summary of the correct principles, paragraphs 37 to 68 of His Honour Brown FM’s decision in Evans & Down [2009] FMCAfam 1431which sets out:
“The legal principles to be applied
37.I now turn to the legal principles which I have to apply in this particular matter. The service of [X]’s best interests is the most important consideration [Family Law Act 1975 section 60CA]. The same legal principles apply at both the interim and the final stage, the distinction being that interim hearings do not determine long-term arrangements for the care of a child, whereas final proceedings do.
38.It is frequently the case that the court is called upon to make interim determinations against a background of urgency, in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child’s best interests.
39.The aims and principles of the part of the Family Law Act 1975 [section 60B] dealing with children emphasise the desirability of both a child’s parents being as closely involved as possible in their child’s life, both in the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm, from being subjected to abuse, neglect or family violence.
40.Accordingly, the starting point prior to the making of any parenting order is for the court to consider whether the parents concerned should have equal shared parental responsibility for their child.
41.The presumption of equal shared parental responsibility, which is set out in section 61DA of the Family Law Act is rebutted if it is found on reasonable grounds that one of the child’s parents has abused the child or exposed him or her to family violence [section 61DA(2)].
42.The court also has a discretion not to apply the presumption, at the interim stage, if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. However, the Full Court has directed that the presumption is not to be applied in an arbitrary fashion, rather, it is most usually to have application at the interim stage in cases where there is likely to be limited evidence [see Goode & Goode (2006) FLC 93-286 at 80, 903].
43.The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s best interests for his or her parents to have equal shared parental responsibility for the child.
44.It should also be noted that if the presumption is applied at the interim stage it must be specifically disregarded by the court at the final stage when a more exhaustive hearing is possible.
45.In considering the child’s best interests I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider: primary considerations and additional considerations.
46.There are two primary considerations: firstly, the need to ensure that any child concerned has a meaningful relationship with both his or her parents and secondly, the need to ensure that any child is protected from harm, both physical or psychological harm, which may arise if the child is exposed to any kind of abuse or neglect including family violence.
47.The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
48.The Full Court has directed that it is necessary for the court to consider all the section 60CC factors applicable and, if possible, make findings about them [see Goode & Goode (supra) at 80,903]. However, at the interim stage it is recognised that it may be difficult, if not impossible, for the court to make findings about issues in dispute.
49.Issues of practicality, in the application of any potential parenting order, are dealt with by the provisions of section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on any child involved.
50.If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the interests of any child concerned, according to the various criteria set out in section 60CC and pursuant to the objects and principles contained in section 60B. Pursuant to section 65D the court is empowered to make whatever parenting order it thinks proper.
51.This case throws up complex issues to do with relocation. It is the mother’s wish to live with the child in Melbourne. It is her case that, as the child’s primary provider of care, she should be entitled to live how and where she chooses with [X]. It is also her case that if she is happy and well settled in the environment of her choosing, this is likely to have beneficial flow-on effects for [X].
52.It is the mother’s case that, as the applicable legislation makes the child’s best interests the paramount consideration, it would be imprudent for the court to ignore the issues which she has raised which essentially paint it as untenable for her to be compelled to live with [X] and tend to his needs at his young age in a place where she herself is bitterly unhappy and feels unsupported both emotionally and practically. Essentially she says that [K] would be a prison for her and if she is so imprisoned, she will not be able to attend to [X]’s needs adequately.
53.On the other hand, the father asserts that the mother’s actions have deprived the child of the opportunity to benefit from having a meaningful relationship with him. As such, it is his case that the mother has shown a poor level of insight into the responsibilities of being a parent.
54.Australia is a free and democratic country. It is the right of any person to live how and where he or she chooses. There is no principle of law which requires separated parents to live close to one another on an indefinite basis.
55.On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned choose not to live together. These principles are difficult to reconcile, particularly at the interim stage, where evidence is necessarily hastily prepared and untested.
56.As a result of these competing considerations the High Court has determined that relocation cases require a court to engage in a close and delicate analysis of the various issues involved, the pros and cons from a child’s perspective of either relocating or remaining in the same location [see AMS v AIF (1999) FLC 92-852].
57.As a result of those considerations it is usually considered preferable that issues of relocation not be determined at the interim stage, particularly as such decisions have potentially serious ramifications for children, particularly young children, in terms of their parental relationships.
58.In addition, for self-apparent reasons, the determination of a relocation issue at the interim stage may make the need for final hearing redundant and so deprive the child concerned of the opportunity for a court to engage in the close and delicate analysis of the various issues concerned. To use a popular metaphor, if relocation is determined at the interim stage, the horse may have bolted.
59.As such, the Full Court of the Family Court has indicated that it is usually preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regards to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone [see C & S [1998] FamCA 66].
60.At both the interim and final stage of any relocation case, the best interests of the child concerned remain the paramount consideration. Depending upon the circumstances of the case it may be incumbent upon the court to investigate the possibility of one parent moving to be closer to the child concerned rather than necessarily directing that a child be moved close to that parent or be restrained from moving in the first place [see U & U (2002) FLC 93-112].
61.However, at this stage I have no evidence as to the practicality or otherwise of Mr Evans potentially moving to Melbourne. In any event it is his case that he is well settled in [K] where he is happy and he is employed and it is his case that the mother has engineered this situation of recent development without any consultation with him. I agree with his submission in this regard.
62.C & S was decided prior to the Family Law Amendment (Shared Parental Responsibility) Act 2006. Prior to the amending Act there was a focus on maintaining stability in arrangements for a child’s care pending a final hearing.
63.Accordingly at the interim stage the court was directed to exercise considerable caution in respect of relocation issues, particularly unilateral relocations which occurred independently of the other parent concerned.
64.I agree that at the interim stage the court must continue to exercise considerable caution about unilateral relocation. The reasons for this caution are obvious: parents should not be encouraged to feel that they can take things into their own hands and in the heat and emotional disconnection of separation, make decisions which will serve their ultimate long-term aims.
65.In my view, as far as possible, unless there are significant issues to do with the welfare of a child, issues to do with relocation should be determined, as far as possible on a metaphorical level playing field unaffected by the post separation actions of one parent who has moved.
66.In Morgan & Miles [2007] FamCA 1230], Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“It is 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 types of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me that the comments of Warnick J in C & S remain apt and relevant to determination of these cases.”
67.Accordingly, at this interim stage, it is my view that I must make some assessment of the evidence available to me to determine whether there was a case of such emergency that justified the mother’s actions in moving [X] away from [K].
68.If I do not consider that there was such an emergency, it may be incumbent upon me to determine that the child should return to the locale from which he was removed, it being not usually in a child’s best interests that long-term issues pertaining to a child, such as relocation, be determined in a truncated or interim hearing.”
Further as was made clear in the Full Court decision referred to in paragraph 66 of His Honour’s decision, the following comments of Warnick J in C & S [1998] FamCA 66 remain apt. They were that:
“In my view, it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as location being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the balance.”
In this case, the unilateral relocation of the mother, and the severance of any meaningful time between the children and the father is, in my view, an event which, notwithstanding the course of events, and in no small part because of the parties’ own actions, does come within the definition of a situation of recent development. However, in this case where there are no parenting orders in place, therefore the requirements contained in section 65DAC do not apply. That is, the primary duty of parents to determine jointly if proposed living arrangements for children would make it significantly more difficult for the children to spend time with their left behind parent. I note the reference to that provision at paragraph 75 of the decision of the Full Court in Morgan & Miles [2007] FamCA 1230 that provides:
“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 s65DAC to determine jointly if proposed living arrangements for a child would make it significant more difficult for that child to spend time with the ‘left behind’ parent.”
Consideration
Turning then to a consideration of the relevant factors as set out in section 60CC, having already identified the proposals of each of the parties, the relevant or uncontested agreed background facts and following that part of the process set out in paragraph 82 of the Full Court’s decision in Goode & Goode [2006] FamCA 1346 not already traversed:
“(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)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
Firstly, the primary considerations is section 60CC(2)(a). At this point, let me note that “meaningful”, as that term is used in section 60CC(2)(a), does not mean equal, but it clearly signifies that both parties should be involved with their children. Consequently it signifies, in my view, an expectation or, at least, a consideration of what that would mean for the time to be spent with each of the children. The right of a child to spend time with each parent and extended family is a right clearly enunciated in section 60B of the Act which sets out the principles in Part VII. It is this issue which is really at the centre of the dispute before the Court today.
Secondly, in relation to the second primary consideration in section 60CC(2)(b). There is, in my view, no doubt that it would be in the children’s best interest to develop a meaningful relationship not just with their mother, but with their father. It seems, by virtue of events which have been traversed in the chronology referred to earlier, that, at least in relation to the eldest child, there are significant difficulties that have been identified by all of those involved with that child in terms of his relationship with his father. That relationship needs time to be addressed and it needs the assistance, if necessary, of therapeutic interventions. The other two younger children need time with their father particularly, and, as palpably noted by the family consultant this morning, [Y] who is sorely missing, and is in need of meaningful time with his father.
That needs to be balanced, however, in respect of protecting the children from any physical or psychological harm and the like. There are allegations made here by both parties, allegations which centre on events both in October 2009 and, more recently, in relation to confrontations at the home in January 2010. Given the nature of those allegations in the nature of this interim hearing, the Court is satisfied there is a need to test the issues of whether the children have in any way been psychologically harmed by whatever may have occurred, whatever they may have witnessed and whatever they may have been involved in.
In terms of the additional considerations, it’s worth noting that the Court is required to consider, where relevant, issues such as the views expressed by the child. As the reasons I have already given make clear here, it’s not been possible because of the circumstances in which the matter has come before the Court for the Court to have a view given this is an interim hearing. Further at this stage of the proceedings the Court does not have the benefit of a report from an independent party as to the views of the child, save as where I have otherwise noted. These are, again, matters that will need to be tested at a final hearing, should such be needed. On the evidence that the parties submitted today, there are some disturbing statements being made by the children. These statements require investigation. The Court also needs to be informed as to the children’s views about the mother’s relocation.
As to the nature of the relationship of the children with each of their parents, again there are contradictions and the parties’ evidence needs to be tested.
As to the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent, that is also a crucial factor here, a factor about which there is much competing and contested allegation and counter-allegation. The mother made, it appears, a unilateral decision, and the children have been away from their father. The reasons for and behind this need to be tested, and will only properly be tested at a final hearing.
As to the section 60CC(4) considerations, and the extent to which each of the parties have fulfilled or failed to fulfil their responsibilities as a parent, again, there are different stories put before the Court.
These allegations also need to be tested, but that having been said, there are issues raised with children being withheld from/by the parents. In this case, the father says he’s effectively been presented with a fait accompli by the mother in taking the children with her to [S] both in October and again in January 2010, and I’m asked to accept, on that basis, that it reflects poorly on her and her failure to fulfil her responsibilities.
The Court is also required to consider the likely affects of any changes in the children’s circumstances. I have noted what’s been reported by the family consultant earlier in these reasons about, however regrettable it is, the turmoil and the change that the children have had to endure over the last number of months. However I have also clearly set out the merit, the need and the prudence of the future arrangements for children being considered on a final basis without the impediment of a situation of recent invention. In my view, the present situation cannot continue. The Court cannot sanction children being spirited off by various parents, for whatever reason, without a proper examination of the reasons for it.
Lastly, in relation to any other fact or circumstance, the Court notes that the children have spent some time with their father since late 2009 and in 2010. However the parties both present positions before the Court today in their respective proposals that make clear this will be made much more difficult into the future, at least if the children are not ordered to be returned to Victoria.
Conclusion
In my view, it’s timely at this stage to refer to the comments made by his Honour Brown FM in Evans & Downs [2009] FMCAfam 1431 said that:
“10.This case raises complex issues of a type which the Federal Magistrates Court, a busy first instance court, is regularly asked to resolve at an interim stage invariably against a background of extreme emotion, where time for hearing is limited, where documents have been hastily prepared and one party appears from a distance, by telephone.
11.The reason for the urgency is reasonably commonplace. One party, very often a mother, says that her previous domestic circumstances were so fraught with difficulty and unhappiness that she had no viable alternative but to relocate, often secretly, both herself and any child concerned away from her unsympathetic partner and unsatisfactory circumstances and seek the security and support offered by family members, who live many hundreds of kilometres away, often interstate.
12.Accordingly it is said that the reason for the sudden and apparently unilateral move of a child is because of a state of emergency has arisen, which impinges on that child’s best interests. Very often it is also said that the parent moving the child has been the child’s primary carer and, as such, considerations relating to the security and happiness of that parent and the implications of this for the child concerned, justify such a move, even if it will adversely impact on the child’s level of relationship with the other parent involved.
13.On the other hand, the parent left behind, very often a father, will contend that if the court permits the child concerned to remain where he or she is, it will necessarily mean that the child will be potentially robbed of having an intimate and meaningful relationship with his or her father, which would be contrary to that child’s best interests both in the short and longer term.
14.These considerations are more pronounced with younger children who are in the process of developing attachments and relationships with those who are likely to be important to them throughout life. For obvious reasons, a father is likely to be amongst the most significant of relatives for a child.
15.These difficult issues are often compounded by financial considerations. Although a relocating parent has obviously demonstrated the ability to move in the first place, he or she asserts later that it would be financially difficult for him or her, if not impossible, to return.
16.In addition, there may be no obvious place of accommodation for the parent and child concerned, if a return is compelled. Equally, a parent left behind is likely to assert that he or she does not have the financial resources to visit the child concerned regularly, in the new location, which has been foisted upon him or her without any consultation.
17.All these difficult issues are present in the current case, which provides no easy or obvious solution. As I remarked yesterday, whatever is the outcome, one party will feel aggrieved and this must have consequences for the security and happiness of [X].”
At this stage, if the children were to be ordered to return to Melbourne, accommodation for them and the mother, given her financial position in exhibit R2, could be an issue. At this interim stage, I could make an order pursuant to section 68B that enhances the welfare of the children by requiring the father to vacate the former matrimonial home and to allow the mother and the children to return to the property. I indicated during my discussions with the legal representatives for each of the parties at the hearing that, it seemed the likely result for the children if there was an order that the mother return with the children to the Melbourne area.
In determining a parenting case where one party wishes to relocate, the children’s best interests remain the paramount, but not the sole, consideration. In this case it is clear that the proper course for the mother would have been to seek approval of the Court over the father’s confirmed opposition, which I accept on the material before the Court at the current time, before moving the children’s residence with her more than 1000 kilometres away, from where the father was then living with, or having regular time with, the children. Her failure to do so, whilst on her case may be explicable was, in my view, not in the children’s best interests. The mother should return with the children to the Melbourne area. She should do so as soon as possible.
I am conscious of the time of the year and particularly the time in the school calendar year, and that such a change on an interim basis whilst in the best interests of the children concerned, would nonetheless cause disruption to them. However, I’m satisfied that appropriate arrangements can be made that would see the children being returned to the Melbourne area to take up residence with the mother in the former matrimonial home. This would allow the children to have sufficient time before the commencement of the term 2 school calendar term in Victoria, and arrangements made with the schools to effect those enrolments and any transfers that are necessary. With the mother and the children returning to the family home which from the children’s perspective this, in my view is clearly the best option.
In the circumstances, given what’s before me, I am satisfied that the father has greater access to finances to meet the cost of the mortgage. The order I intend to make will see him having to vacate that home to allow the mother and the children to return to Melbourne, and for them to have sole use and occupancy until further order. In coming to that view I have considered the financial reality.
On the limited material before me the father is better able, than the mother to meet those costs. This includes the necessary arrangements to amongst other things seek a holiday from the mortgage principal payments.
In terms of time with the father upon the children’s return to Victoria to the Melbourne area, there are issues with respect to this, and they were the subject of exchange with Counsel during submissions. Given [X]’s views, the orders that I make will make clear that any such time is to be subject to that young man’s views. His views and the hurt that, it appears, he continues to endure as a result of the actions of his parents should be allowed time to heal and to mend. Further to do so in a way most suitable to him being able to have the best chance of putting these most unfortunate circumstances behind him. However save for that in the particular circumstances here, it seems to me that time with the father upon their return to Melbourne on alternate weekends, by telephone, special occasions, is appropriate on an interim basis.
There will be an order for the appointment of an Independent Children’s Lawyer given both parties’ attitudes and their motivations and as I suspect there being other agendas at play in the context of this dispute. I am satisfied at least two of the criteria set out in the decision of Re Kay [1996] FamCA 55 are met given what’s gone on between these two parents in the past, and the stakes, at least, for the best interests of the children in the future.
As discussed, the parties will need to engage with a family relationship centre, get a family report and, upon the return of the children to Melbourne, allow the matter to settle down before the matter is back before the Court in a relatively short space of time for a final hearing in November. Given what I have heard by way of submissions from each of the parties, and also on the basis of the material that’s been filed by them, as well as on the recommendation of the family consultant I am satisfied that a psychological report is also needed, the cost of which the parties will share equally.
I don’t think it’s impossible, on what’s before me, for the mother to come back to Melbourne with the children. If she doesn’t return with the children, however, by 8 April 2010, the father will have liberty to apply on 24 hours notice to seek a recovery order that the Court will consider against the background and the circumstances at that time which would see the police seeking the recovery and removal of the children and their return to Melbourne, and the Court will give liberty to the applicant father to make such an application on 24 hours notice if it is necessary. However, as I hope the reasons I have given have made clear, that possibility should, if it all possible, be avoided. If it is necessary, as the reasons I have given make clear, the best interests of these children require them to be back in Melbourne, and their best interests on a final basis to be determined here rather than in a situation of recent invention.
At this stage, and as was amplified by the section 11F report, the children need a relationship with both parents, and the investigation and determination of final orders is best done back here in Melbourne. Also at this stage, I do not think that the presumption of equal shared parental responsibility should be applied. I do not think it is appropriate to apply given the parties’ own material, the accusations they make and the inability of the Court at an interim stage to safely determine whether, given that, if it’s a good idea and in the children’s best interests.
For all of those reasons, and having regard to all of the relevant considerations set out earlier, the orders, on an interim basis, that I am satisfied are in the best interests of the children concerned are as set out at the beginning of these reasons.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Associate: Rachelle Lombardo
Date: 23 March 2010
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