LARA & LARA

[2020] FCCA 3379

FEDERAL CIRCUIT COURT OF AUSTRALIA

LARA & LARA [2020] FCCA 3379

Catchwords:
FAMILY LAW – Application for interim parenting arrangements for children aged 11 and 8 – mother relocated from Adelaide to Town A after an alleged incident of violence with her former partner – father seeking that children be returned to Adelaide – nature of interim hearing – best interests of the children – children ordered to be returned to Adelaide.

Legislation:

Family Law Act 1975 (Cth), ss.4, 67N

Cases cited:

Morgan & Miles (2007) FamCA 1230

Applicant: MR LARA

Respondent: MS LARA

File Number: ADC 1165 of 2020

Judgment of: Judge Brown

Hearing date: 10 August 2020

Date of Last Submission: 10 August 2020

Delivered at: Adelaide

Delivered on: 10 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Read

Solicitors for the Applicant: Calderwood Atkinson

Counsel for the Respondent: Ms Penney

Solicitors for the Respondent: Stevens Law

THE COURT ORDERS THAT:

1. The mother return the children of the marriage X born 2009 and Y born 2012 “hereinafter referred to as “the children” to Adelaide by no later than 6:00pm on 3 October 2020.

UNTIL FURTHER OR OTHER ORDER:

1. In the event the mother elects to live in Adelaide pending final hearing, the children live with the mother and the orders of 15 April 2016 will continue.

2. In the event the mother elects not to live in Adelaide the children will live with the father and the mother spend time with the children for one half of each South Australian school holiday on a week about basis and on any such times and conditions as the parties agree from time to time.

3. Further consideration of the matter is adjourned to 8 October 2020 at 9:30am for directions and to ascertain if a family report should be prepared.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1165 of 2020

MR LARA

Applicant

And

MS LARA

Respondent

REASONS FOR JUDGMENT

Preamble

1. These reasons for judgment were delivered orally.  Given the length of the reasons, it is appropriate that the reasons be transcribed.  This is the relevant transcript.  Grammatical errors have been corrected and efforts made to make the oral reasons amenable to being read.

Introduction

1. So this afternoon I have to deal with an application in which Mr Lara is the applicant and Ms Lara is the respondent.  The parties are the parents of two children, Y, who was born 2012 – so Y is currently about eight and a half years of age – and X, who was born 2009.  Accordingly, X is around 11 years of age. 

2. Mr Lara, to whom I will refer as the father in these orally delivered reasons for judgement, commenced these proceedings some time ago, on 19 March 2020.  On an interim basis he sought that his application be listed urgently. 

3. More significantly, he sought an order that the two children concerned be returned to Adelaide and returned to what had previously been their school at Suburb B.  He sought orders that would see the two children concerned living with him. 

4. At that time he also sought an order pursuant to section 67N of the Family Law Act.  That is the provision of the Act which authorises government instrumentalities to provide information to the Court to allow service of documents when an applicant does not know the whereabouts of either a parent or a child concerned.

5. In his application, Mr Lara sought an order that Centrelink provide information about Ms Lara’s whereabouts so that he could serve his application upon her. 

6. At that stage, Mr Lara’s affidavit material was brief.  Attached to his affidavit was an order of the Court made by Judge Young on 14 April 2016.  That order related to the parties in these proceedings and the children Y and X.  The order provided that the parties should have equal shared parental responsibility for the two children who were to live with their mother. 

7. Significantly, the children were to spend time with their father on alternate weekends during school terms and for half of all school holidays on a week about basis.  Other orders dealt with how the children were to spend time with their father on special occasions.  The orders were made with the acquiescence of each of the parties and, presumably, also an independent children’s lawyer. 

8. I do not think I had anything to do with those earlier proceedings but from Judge Young’s perspective, it would appear to be the case that there were issues of such moment that the two children should be independently represented. 

9. The orders are extensive and, in addition to the parties being conferred with equal shared parental responsibility for their children, they were directed to keep each other informed of the children’s health and wellbeing. 

10. The mother was to authorise the schools attended by the children from time to time to provide the father with school reports and school photographs and so on and so forth.  The parties were also to exchange information regarding the children’s care, welfare and development. 

11. It is a significant thing when a court order provides for parties to have equal shared parental responsibility for their child or children.  Pursuant to the relevant provisions of the Family Law Act they are required to consult with one another about major long-term issues to do with their children. 

12. The expression “major long-term issues” is defined in section 4 of the Act. It includes the following things: issues to do with the education of any child, the child’s religious and cultural upbringing, the child’s health, the child’s name, and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent. So when parties are conferred with equal shared parental responsibility, they have a duty and responsibility to consult with one another.

13. In his affidavit filed in support of his application, Mr Lara deposed that Ms Lara had been erratic from time to time in respect of him spending time with the children.  He criticised her for not enabling him to be involved in the children’s school activities.

14. More significantly, he deposed that on New Year’s Eve 2020 Ms Lara had been involved in a serious incident involving her then partner, in which he alleged that Ms Lara had stabbed her partner, which had resulted in her being charged with a serious criminal offence. 

15. Thereafter, Mr Lara deposed that he had not been sure where Ms Lara and the children were, other than when he had been contacted by the mother for the occasion of his birthday.  At that time, he had spoken to the children and the mother had told him that she was in Town C, which, of course, is in the west of South Australia. 

16. However, it is his case that she did not tell him precisely where she was and was not forthcoming about issues to do with the children’s schooling.

17. For obvious reasons, Mr Lara was anxious about what had happened between the mother and her partner and what the implications of that were for the two children concerned. 

18. The application was listed before the Court on 12 May.  I am not sure why that was so other than the Registrar thought that as it was a Commonwealth information order matter, it was not urgent.  I accept from Mr Lara’s perspective it was urgent and, in any event, on 12 May, Centrelink was directed to provide to the Court information about where the mother and the children were, so she could be served with the application concerned.  The case was then adjourned to allow that to happen to 11 June.

19. Ms Lara, through her solicitor, filed a notice of address for service on 10 June.  The case was back in Court the next day.  In those circumstances, an order was made allowing Ms Lara to respond to the application.  She was given 28 days to do so. 

20. Significantly, and to the parties’ credit, it was agreed that Mr Lara would spend some time with X and Y from 4 or 5 July until 16 July.  That, of course, coincided with the mid-year school holidays.  No doubt, from his perspective, he was very anxious to see the children. 

21. The mother’s position is that the orders, which envisage the father seeing the two children regularly during the school term on alternate weekends, should be discharged and the children should live with their mother in the Town C area. 

22. She proposes that the children spend time with their father for at least one half of all the school holidays and that there be FaceTime communication between the father and the children.  The mother has prepared her answering documentation through her solicitor, Ms Penney, in which she has provided more information about the parties’ history together. 

23. The parties apparently have known each other for a very long time.  They met when they were teenagers or young adults.  They married in 2005.  They separated in 2013 initially and then finally in October of 2014. 

24. It is Ms Lara’s perspective that she and Mr Lara were amicable in respect of their post-separation parenting arrangements.  This is not a case in which the mother asserts that Mr Lara was a coercive and controlling partner or parent after they had separated.

25. However, it is her position that she had a discussion with Mr Lara about moving from where she was then living, which was her mother’s home in Adelaide, and moving to a place at Town A, which as I understand it, is a fairly remote place, midway between Town C and Town D. 

26. It is her case that when she discussed this during the 2019/2020 school holidays, she said to Mr Lara that if the children liked it, she was going to stay.  It is her case that the children fell in love with it and she is living on a 3,000 acre farm property, in a house that has four bedrooms and two bathrooms.

27. She also indicates that she has formed a relationship with another person, who is employed as a farmhand.  Obviously, from his perspective, that is a good location to live given his rurally-based occupation.  It is her case that, when the children were attending school in Adelaide, they were struggling because each of them has some special needs, particularly X, but they are doing better at new schools and in a new environment. 

28. The mother concedes that she has been charged with assault and it is her case, essentially, that she was the victim of Mr E’s violence towards her, rather than vice versa, and she is going to be pleading not guilty to any charges.  She has not given a great deal of detail in respect of what actually happened, other than that she asserts her partner was present and is presumably a witness. 

29. The mother also has a complicated familial situation, in that she and Mr E have two children; F, who was born 2014, and G, who was born 2018.  What are the implications of the children being at Town A, from Mr E’s point of view, is not clear to me.

30. The father, in these proceedings, has filed an affidavit in answer to the mother’s allegations.  He refutes any suggestion that the parties agreed in any way whatsoever that the children could relocate away from Adelaide.  From his perspective, this is a unilateral action on the mother’s part. 

31. It is his position, in addition, that the mother has moved with the two children without any regard for his relationship with them in the past.  It is also his position that there are other issues regarding Ms Lara which are likely to require the detailed analysis of the Court. 

Legal principles applicable

1. Accordingly, this is a case dealing with issues of relocation, which are inherently very complicated.  They necessarily concern competing legal principles which relate, on the one hand, to a person’s freedom of movement and the entitlement of children, on the other, to have a beneficial level of relationship with not just one, but both of their parents. 

2. For obvious reasons, issues to do with a parent relocating far away from the other parent concerned have very significant implications for the welfare of children, particularly young children.  Children cannot always easily sustain relationships with their parents over distance. 

3. As I have mentioned, this is a case in which a Court has determined that the parties should have equal shared parental responsibility for their two children. 

4. In those circumstances, it is a significant issue that Ms Lara has moved a long, long, long way away from Adelaide.  Obviously, the children cannot see their father on alternate weekends as the parties had agreed and from Mr Lara’s point of view, he cannot be involved in any issue to do with the children’s schooling. 

5. Relocation has implications for the quality and intimacy of parental relationships a child has with the absent parent.  As I have already eluded, the relevant authority is a case called Morgan & Miles.[1]  It is a case of her Honour Boland J.  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 type of cases in which the child’s present stability may be extremely relevant on an interim basis.  It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.” 

   [1]  Morgan & Miles (2007) FamCA 1230 at [88]

6. In this case, it is relatively clear to me that Ms Lara did not have Mr Lara’s clear approval to move the children away from Adelaide.  It was an emergency which related to her family situation, not something that was orchestrated or precipitated by Mr Lara. 

7. It seems improbable that Mr Lara would have given his acquiescence and then withdrawn it a few days later.  However, Ms Lara, through her counsel Ms Penney, has said that there is a text message but because of her police charges the phone on which the message is stored has been seized. 

8. With the greatest respect, I do not know if that is a sufficient basis to adjourn the proceedings.  In addition, I am concerned that the issues to do with Ms Lara’s relationship with Mr E may be relevant to these proceedings.  This is an abridged hearing.  At this stage, the hearing has been conducted on the telephone because of the pandemic crisis. 

Discussion

1. I am not in a position to make findings of fact about the very many matters that are in dispute between the parties.  On the one hand it is clear, I think, that Ms Lara has been the children’s main provider of care.  In those circumstances, her freedom to live where she wants and how she wants is a significant factor.  However, that right is not untrammeled. 

2. In any event, it is subservient to the children’s entitlement to have a meaningful level of relationship with each of their parents.  In addition, as I eluded to earlier, I have to think about the interests of other users of the court system. 

3. It is a very common thing that a parent will relocate with children far away from the other parent.  Later, when proceedings are instigated, the parent who has moved says, “Look, I have no alternative.  I had to go.” and that, of course, leaves the parent left behind feeling resentful and unhappy if the Court subsequently approves the relocation. 

4. In addition, in such cases it is common that the relocating parent, having moved says, “Look, it’s simply impossible for me to go back.”  The other parent responds, “Well, if you had the resources to go why have you not the resources to return.” 

5. Accordingly, I have to look very carefully at the situation that faced Ms Lara.  I can appreciate that she wants to live where she wants to live.  It is a free country. 

6. On the other hand, there was a court order.  Ms Lara must have realised that she would not be able to fulfil that order if she moved to the far west of the state.  The sensible and prudent thing for her to have done would have been to come to the Court and have the order changed.  She did not do that. 

7. Perhaps she realised that Mr Lara was unlikely to agree to such a course and perhaps, also, she hoped for the best.  It is regrettably the case that when people take things into their own hands, and act unilaterally, that that creates a situation where the Court is compelled to do unpalatable things. 

8. Whatever happens in this case, somebody will be unhappy.  There is nothing I can do about that.  The best interests of the two children are the paramount consideration. 

9. I have to consider two things above all, the need to protect the children from coming to harm as a result of being exposed to family violence, neglect or abuse, and the benefits they are likely to derive from having a meaningful level of relationship with their father.  At this juncture, as a consequence of what has happened, the children’s relationship with their father is significantly different and changed. 

10. Ultimately, it may be the Court’s decision that X and Y’s best interests will be served by living with their mother where she wants to live.  However, I am not at that point yet.  I cannot preempt a final hearing. 

11. Basically, the issue of relocation has to be determined on a level playing field, which is now skewed to the advantage of one parent more than the other.  That, in my view, must mean that the children should return to the Adelaide area.  There is nothing I can do to compel Ms Lara to live in one particular area.  She is a free agent.  My authority resides only with the children. 

12. However, as a result of what I consider to be a species of legal sleight of hand, I can give the mother an unpalatable choice.  She can live, if she wants, with her partner in Town A, but if she does so, the children will live with their father in Adelaide and spend time with their mother in school holidays. 

13. However, in the event that the mother, pending the final hearing of the matter, elects to return to Adelaide the orders, which were made in 2016, over four years ago now, can be re-instated.  I think it is in the best interests of the children concerned that this issue be examined properly. 

14. So for those reasons, I will direct that the children be returned to Adelaide on or before 6.00pm on 3 October 2020.  In the event that the mother elects to live in Adelaide, pending final hearing, I will direct that the children live with her and the orders that were made on 14 April 2016 will continue. 

15. In the event that the mother elects not to live in Adelaide, the children will live with the father and the mother will spend time with the children for half of each school holiday period on a week about basis at such times and on such conditions as the parties agree from time to time.  I will list the matter for further directions and to ascertain if a family report should be prepared on 8 October at 9.30am. 

16. The mother, through her counsel Ms Penney, indicated that she, to a certain extent, saw the writing on the wall.  She wanted more time to return to Adelaide so that the children could see out the year in Town A. 

17. It is the mother’s perspective that it will be difficult for her to get accommodation in Adelaide.  The father asserts that there is plenty of accommodation available and Ms Lara’s mother, or even he himself, could be a guarantor for some accommodation.  That is an issue which I cannot resolve at this interim stage. 

18. However, I am satisfied Mr Lara has moved as quickly as he can.  He has had to apply for Legal Aid.  There have been delays in the court system.  Ms Lara has taken time to respond.  I do not think the delay can be sheeted home to Mr Lara. 

19. In those circumstances, I am satisfied, balancing all the considerations, that to give Ms Lara six or so weeks to organise herself is not unreasonable.  So for those reasons, I will make the orders I have proposed.

20. The orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 10 December 2020