LEROY & LEROY

Case [2018] FCCA 3211

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEROY & LEROY [2018] FCCA 3211
Catchwords:
FAMILY LAW – Interim relocation – mother unilaterally relocated to Town A with the children from Sydney – father seeks the mother and children return to Sydney and proceedings be transferred to the Sydney registry – mother seeks permission to remain in Town A with the children on an interim and final basis.

Legislation:

Family Law Act 1975 (Cth), ss.(4)(1)(c), 61C, 60DA, 61DA(3), 121.

Cases cited:

Redmond & Redmond [2014] FamCAFC 155

Goode & Goode (2006) FLC 93-286

SS & AH [2010] FamCAFC 13

AMS v AIF (1999) 199 CLR 160

Reece & Reece [2011] FamCAFC 24

Deiter & Deiter [2011] FamCAFC 82

Morgan & Miles (2007) FLC 93-343

C & S [1998] FamCA 66

Browne & Keith [2015] FamCAFC 143

MRR v GR (2010) 240 CLR 461

Other:
Family Court of Australia and Federal Circuit Court of Australia, Family Violence Best Practice Principles, 4th edition, December 2016
School of Law, The University of Queensland, National Domestic and Family Violence Bench Book (2018) <

Applicant: MS LEROY
Respondent: MR LEROY
File Number: AYC 319 of 2018
Judgment of: Judge Harland
Hearing date: 1 November 2018
Date of Last Submission: 1 November 2018
Delivered at: Melbourne
Delivered on: 8 November 2018

REPRESENTATION

Counsel for the Applicant: Mr Thompson
Solicitors for the Applicant: Binnie & Associates Lawyer
Counsel for the Respondent: Ms Burt
Solicitors for the Respondent: Broun Abrahams Burreket

ORDERS

  1. The children [X] born 2009 and [Y] born 2012 (“the children”) live with the mother.

  2. The mother and the children be permitted to remain in Town A pending the final hearing.

  3. The father spend time with children as follows:

    (a)In Melbourne on Saturday 10 November 2018 from 10:00am to 4:00pm to be supervised;

    (b)In Melbourne on Saturday 17 November 2018 from 10:00am to 4:00pm with the first two hours to be supervised and the remaining hours to be unsupervised providing the children are not distressed;

    (c)In Melbourne from 10:00am to 4:00pm on Saturday 15 December with the first two hours to be supervised and the remaining hours to be unsupervised providing the children are not distressed;

    (d)In Melbourne from 10:00am to 4:00pm on Sunday 23 December and from 10:00am to 4:00pm on Monday 24 December;

    (e)Commencing 5 January 2019, each alternate weekend in Melbourne on Saturday from 10:00am to 4:00pm and Sunday from 10:00am to 4:00pm.

  4. That 48 hours prior to each visit the father is to advise the mother of the accommodation where he will be staying.

  5. Changeover is to occur in Melbourne, with the mother to deliver and collect the children from a handover location nominated by the mother and the mother to advise the father of the chosen location 24 hours prior to the visit, being a public place with a CCTV camera and being approximately 5 minutes’ walk of the father’s accommodation, other than a police station.

  6. The father be permitted to communicate with the children by telephone, facetime or skype when…

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Details
AGLC
Leroy and Leroy [2018] FCCA 3211
Case
[2018] FCCA 3211
Decision Date

CaseChat Overview and Summary

This case concerned an interim relocation dispute between the mother and father of two children, [X] and [Y]. The mother had unilaterally relocated with the children from Sydney to Town A. The father sought the return of the mother and children to Sydney and a transfer of proceedings to the Sydney registry, while the mother sought permission to remain in Town A with the children on both an interim and final basis. The matter came before Judge Harland.

The primary legal issues before the court were whether the mother and children should be permitted to remain in Town A pending the final hearing, and the appropriate interim parenting arrangements, including the father's time with the children. The court was required to consider the implications of the unilateral relocation, the allegations of family violence, and the best interests of the children in determining these interim orders. The court also had to navigate the limitations of an interim hearing in resolving disputed factual matters.

Judge Harland acknowledged that unilateral relocations are not condoned, but emphasised that interim decisions must be based on the best interests of the children in all the circumstances. The court noted the significant impact of a past incident of family violence on the children and parents, and that the full extent of family violence would need to be explored at the final hearing. The judge found that while alternative weekend contact in Melbourne might not be sustainable long-term due to the distance, the final hearing was only four months away. The court was not satisfied that overnight time or travel to New South Wales would be in the children's best interests at this stage, and therefore ordered that the father's time with the children would be day visits in Melbourne, with a phased introduction of supervised and unsupervised time.

The court ordered that the children live with the mother and that she and the children be permitted to remain in Town A pending the final hearing. Specific interim parenting orders were made regarding the father's time with the children, including supervised and unsupervised day visits in Melbourne. The court also ordered the parties to attend a conciliation conference and directed the preparation of an updated private family report. The matter was adjourned for a final hearing on 5 March 2019.

Orders

Orders of the court

1.

The children [X] born 2009 and [Y] born 2012 (“the children”) live with the mother.

2.

The mother and the children be permitted to remain in Town A pending the final hearing.

3.

The father spend time with children as follows:

(a) In Melbourne on Saturday 10 November 2018 from 10:00am to 4:00pm to be supervised;

(b) In Melbourne on Saturday 17 November 2018 from 10:00am to 4:00pm with the first two hours to be supervised and the remaining hours to be unsupervised providing the children are not distressed;

(c) In Melbourne from 10:00am to 4:00pm on Saturday 15 December with the first two hours to be supervised and the remaining hours to be unsupervised providing the children are not distressed;

(d) In Melbourne from 10:00am to 4:00pm on Sunday 23 December and from 10:00am to 4:00pm on Monday 24 December;

(e) Commencing 5 January 2019, each alternate weekend in Melbourne on Saturday from 10:00am to 4:00pm and Sunday from 10:00am to 4:00pm.

4.

That 48 hours prior to each visit the father is to advise the mother of the accommodation where he will be staying.

5.

Changeover is to occur in Melbourne, with the mother to deliver and collect the children from a handover location nominated by the mother and the mother to advise the father of the chosen location 24 hours prior to the visit, being a public place with a CCTV camera and being approximately 5 minutes’ walk of the father’s accommodation, other than a police station.

6.

The father be permitted to communicate with the children by telephone, facetime or skype when the children are in the mother’s care and the mother shall facilitate such communication:

(a) On Tuesday, Thursday and Sundays between 7:00pm and 8:00pm; and

(b) At all other reasonable times.

7.

That each parent notify the other not less than twenty-four (24) hours prior to a change in their landline or mobile telephone number and/or email address.

8.

If there is any medical emergency involving the children or either of them, including but not limited to serious illness, accident or hospitalisation, the parent with the care of the children is to immediately contact the other parent as soon as practicable and provide the other parent with all documentation and information in their possession regarding the emergency.

9.

The mother and father will inform the other of any medical treatment the children receive and the treating doctor as soon as practicable after the children or either of them have/has received the treatment and advise of any medication prescribed for the children from time to time and provide the medication and appropriate instructions for its administration prior to or at the time of any changeover.

10.

Each parent is at liberty to obtain all relevant medical records and consult the children’s medical practitioners to obtain any information they require and these orders are sufficient authority for that purpose.

11.

Both the mother and father are permitted to liaise directly with the children’s school, sporting, co-curricular and extra-curricular bodies to receive notices, information, newsletters, reports, photographs and any other necessary information about the children’s progress.

12.

Without admitting the necessity for such an Order, each party is restrained from:

(a) Denigrating the other parent or a person with whom the other parent has a relationship, in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with; and

(b) Discussing any adult matters with the children, including the details of these proceedings, or allowing a third party to do so in their presence.

13.

The mother be restrained by injunction from permitting the children to attend upon Dr S.

14.

That the mother and father jointly agree on a clinical psychologist to be appointed to provide therapeutic support to the children and the parties will facilitate the children’s attendance on that person, and no other person without the parties’ joint written consent.

15.

The parties are granted liberty to apply with respect to counselling in the event the parties are unable to agree on a clinical psychologist.

16.

The father will be responsible for his travel and accommodation expenses to and from Melbourne to spend time with the children.

17.

The mother will be responsible for the children’s travel expenses to and from Melbourne for the father to spend time with the children.

18.

The mother will be responsible for her own travel costs to and from Melbourne associated with the father spending time with the children.

19.

Each parent be at liberty to provide a copy of these orders to any third party necessary to ensure compliance with these orders.

20.

Within 14 days, each party make a request for the disclosure of the documents from the other party, and the other party comply with that request within a further 14 days.

21.

Unless the parties have confirmed in writing an agreement as to the market value of all properties in dispute, then the wife forthwith submit the names of three valuers in respect of the Victorian properties with the husband to pick one and the husband forthwith submit the names of three valuers in respect of the New South Wales properties with the wife to pick one with the costs of same to be borne equally by the parties and such valuation to be filed with the Court not later than 7 days prior to the conciliation conference.

22.

Pursuant to Rule 10.05 of the Federal Circuit Court Rules 2001, the parties attend a Conciliation Conference with a Registrar of the Federal Circuit Court of Australia at the Melbourne Registry on 18 January 2019 at 2:15pm.

23.

Unless otherwise exempted from payment, the Applicant must pay the Conciliation Conference fee of $380 in accordance with the Family Law (Fees) Regulation 2012 28 days prior to the Conciliation Conference.

24.

Should the Applicant fail to comply with Order 22 herein the matter be listed for mention before the Court as soon as practical prior to the Conciliation Conference.

25.

The parties’ solicitors (and if they are unrepresented, the parties themselves) send to the other, and the nominated organisation, at least 7 days before the Conciliation Conference, copies of:

(a) an outline of case document in the form set out below in the trial directions;

(b) a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;

(c) a copy of the actual terms of orders required to give effect to their settlement proposal; and

(d) written confirmation by each party or their solicitor that:

i. all relevant documents have been exchanged between the parties; and

ii. the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.

26.

The mother, the father and the children [X] born 2009 and [Y] born 2012 attend upon the family report writer for the preparation of an updated private family report.

27.

The cost of the private family report to be borne equally by the parties.

28.

The family report deal with the following matters:

(a) any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;

(b) the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975;

(c) any other matters that the family report writer considers important to the welfare or best interests of the children.

29.

The mother and the father comply with all reasonable directions as to attendance upon the family report writer as and when required by the report writer.

30.

Within seven days of being notified of the identity of the family report writer, the solicitor for each of the parents (or, if unrepresented, then the parent himself or herself) deliver or cause to be delivered to the family report writer copies of the following documents:

(a)all relevant applications, responses and affidavits filed by that parent in these proceedings; and

(b) any intervention or restraining orders currently in force.

31.

The family report writer have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent.

32.

If either parent requires the relevant family report writer to attend for cross examination at the final hearing, then that parent give the relevant family report writer seven (7) days notice in writing.

33.

The applicant solicitor to file and serve the updated family report on or before 19 February 2019.

34.

The matter be adjourned for final hearing on 5 March 2019 at 10:00am (with an estimated hearing time of four days).

35.

The parties file and serve one affidavit of evidence in chief and one affidavit of each witness including expert witnesses, complying with r.15.28 of the Federal Circuit Court Rules 2001 and an updated financial statement upon which they intend to rely at trial on or before 5 February 2019.

36.

Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits without the leave of the court.

37.

The party responsible for the payment of any fee including a setting down or hearing fee 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 Family Law (Fees) Regulations 2012.

38.

At least 72 hours prior to the trial, each party provide to the other party and to the Associate to the Judge, a Case Outline document as follows:

Parenting

a) a list of the documents to be relied upon;

b) a brief chronology;

c) an outline of contentions with respect to:

i. whether the presumption of equal shared parental responsibility applies (s.61DA),

ii. the considerations relevant to equal time and substantial and significant time (s.65DAA);

iii. each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

iv. other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and

v. any other matters relevant to the decision; and

d) a statement of the precise orders sought

Property

a) a list of the documents to be relied upon;

b) a brief chronology;

c) a table listing all of the assets, liabilities and financial resources claimed to be part of the asset pool, with the values contended for by that party;

d) the main contentions on disputes as to:

i. what items are to be included in the pool; and

ii. the value of each asset in the pool;

e) a list of contributions claimed or contended for;

f) a list of other factors relied upon (s.75(2) factors);

g) the percentage adjustment contended for; and

h) a statement of the precise orders sought.

39.

Any party seeking to rely on an affidavit of an expert witness notify the expert of the trial listing at least twenty-one (21) days prior to trial and confirm with my chambers accordingly.

40.

Each party provide a copy of their trial Affidavits to the expert witness at least seven (7) days prior to trial.

41.

Any Subpoena material to be relied upon at the Trial must be made returnable at least (3) three days prior to the hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

When determining issues with respect to family violence, reference should be had to the Family Violence Best Practice Principles 4th edition[1] and that National Domestic and Family Violence Bench Book[2].[1] Family Court of Australia and Federal Circuit Court of Australia, Family Violence Best Practice Principles, 4th edition, December 2016[2] School of Law, The University of Queensland, National Domestic and Family Violence Bench Book (2018) <>Several authorities have commented on the truncated nature of interim hearings. For example in Redmond & Redmond [2014] FamCAFC 155 the Full Court said the following at [21] – [23]:21. Before dealing specifically with each of these grounds we observe that permeating several of them as they were argued by the father – both in his summary of argument and his oral argument on the appeal (particularly grounds 1, 2, 4 and 7) – there appeared to be misapprehension by the father as to the place of disputed issues of fact as between the parties which remained untested on an interim hearing. In purported reliance upon Goode & Goode (2006) FLC 93-286 the father’s arguments seemed to proceed on the footing that the trial judge ought to have ignored or disregarded any allegations of fact which were adverse to the father by reason of his disputing them and which could not be determined in an interim hearing. 22. This approach overlooks two important things. First is the distinction between, on the one hand, the acknowledged limitations in an interim hearing to determine disputed issues of fact on untested evidence and, on the other, the need for the court to consider, particularly when the subject facts or allegations are centrally important to a child’s welfare, the risks to that welfare if those facts or allegations are ultimately established at a trial. Second, the fact that an issue or allegation of fact is disputed does not sit in isolation. Consideration of other evidence, including independent expert evidence, may weigh in the court’s consideration as to probabilities, one way or the other, of an allegation ultimately being established, or rejected, at a trial. 23. In SS & AH [2010] FamCAFC 13 Boland and Thackray JJ said at [99]-[100]:99. We also should keep in mind what Kirby J said in AMS v AIF (1999) 199 CLR 160 at 211:[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. 100. The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue. Interim relocation decisionsBoth counsel relied on Morgan & Miles (2007) FLC 93-343 and drew particular attention to the guidelines referred to by Boland J at [82] to [88] and the use of guidelines.At [88] Boland J said that particularly in relocation cases given the nature of the issues it is highly desirable that except in cases of emergency, arrangements should not be determined in abridged interim matters. She also referred to Warnick J’s comments in C & S [1998] FamCA 66.The father’s Counsel referred to the Full Court decision of Browne & Keith [2015] FamCAFC 142 and the comments about what is an emergency. She submitted that given the mother did not move for three months, the circumstances could not be elevated to an emergency. This appears to be based on a misreading of what the Full Court said in this regard. I refer to [28] and [29]:28. His Honour, after finding that the mother’s decision to move to Western Australia with the child was unilateral, set out extracts from the authorities relevant to the issue and then said:112. … The case law suggests the Court should not readily grant interim relocations where there has been a unilateral relocation except in cases of emergency. This is not a matter where there is an emergency.29. It first needs to be said that nothing in the authorities quoted by his Honour gave support for this novel statement of the law, nor, so far as we are aware does it exist in any other authority. Thus, his Honour was wrong; that is not the law. Indeed, the law is as espoused by the High Court in MRR v GR (2010) 240 CLR 461, but his Honour failed to refer to that decision in his discussion of the relevant law.The mother’s Counsel referred to [62] and [63] of Deiter & Deiter [2011] FamCAFC 82 where the Court observed that interim hearings are truncated proceedings and the Court has to be cautious about being drawn into contentious trial issues. The Court looks to less contentious matters such as agreed facts, care arrangements prior to separation, the current circumstances of the parties and the children, and the parties’ respective proposals.I also observe the comments of the Full Court at [110] to [113]:110. We accept that in preparing her checklist, Boland J was attempting to provide guidance for parties and practitioners involved in relocation disputes. However, one difficulty in creating a “checklist”, is that a gloss will be added to a statute that is already overly complicated. A further concern is that judicial officers will begin to apply the checklist, rather than the legislation, thereby overlooking the nuances contained in the statute. 111. Subdivision E of Division 1 of Part VII of the Act lays down the requirements for parties to make a genuine attempt to resolve disputes by using family dispute resolution services before instituting proceedings. There are, however, clearly stated exceptions to that requirement (which Boland J attempted to capture by use of the expression, “unless an exclusionary circumstance applies”). Kaeser AM did not in his reasons specifically address the question of whether such circumstances applied here. 112. The legislation clearly recognises, in s 60I(9), that where there are reasonable grounds to believe that there has been family violence or there is a risk of family violence, there is no obligation to make a genuine attempt to resolve matters before instituting proceedings. Kaeser AM, when addressing the application of the presumption of equal shared parental responsibility, properly found there had been “family violence”. In those circumstances we see little utility in his Honour having referred in his reasons to the absence of a genuine attempt by the parties to resolve their dispute.113. In our view it is important that victims of family violence understand they will not be criticised for failing to seek to resolve disputes they may have with the person who perpetrated the violence. Such attempts to resolve issues could place the victim at further risk, or result in outcomes that are not in the best interests of children. ConclusionThe Court does not condone unilateral relocations. The observations of Boland J in Morgan & Miles, especially at [88], are important. Nonetheless the court must determine what is in the children’s best interests in all of the circumstances of the case.The task of the court and an interim stage is a delicate one. I must ask what if the allegations are made out, and what if they are not? What are the risks? The father acknowledged that the children have been exposed to a serious incident of family violence on 12 January 2018 which has had an enormous impact on the children and both parents.On a long term basis alternative weekend contact in Melbourne is unlikely to be sustainable whilst the father remains living in Sydney, but the final hearing id four months away.What I cannot determine on an interim basis is whether or not this was the only incident, as the father states, or whether this was the worst in a series of escalating incidents and that there was a pattern of emotionally abusive and controlling behaviour throughout the parties’ relationships.It is significant that the father concedes that the children should live primarily with their mother. It is of concern that in his original minute of orders submitted with his case outline he sought a recovery order if the mother did not return the children to Sydney and that the children live with him. That would have been incredibly distressing for the children. If the mother were to return to Sydney with the children, then under the father’s proposal he would be seeing the children in a graduated regime leading to alternate weekends. The father’s Counsel submitted that if the mother is allowed to stay in Town A with the children pending the final hearing, that will negatively impact on the ability of the father to rebuild his relationship with the children and it will be naive to think that they will not be allowed to stay in Town A on a final basis. Whilst I accept that the distance between the parties makes this more difficult, I reject the second part of the submission. Whilst the father may well feel that that the final outcome is a foregone conclusion that is far from true. If that were the case, then interim orders would predetermine many final hearings.In this case it is conceded that the mother unilaterally relocated with the children. The pros and cons of the mother’s relocation will be fully explored at the final hearing. The mother’s Counsel identified many of the issues to be determined at the hearing. These will include the viability of the father moving to Town A or Melbourne and the mother and children returning to Sydney with the children. There will be issues about the mother’s willingness and ability to facilitate the father’s relationship with the children and the practical difficulty and expense in doing so. Property proceedings are also on foot but understandably the financial aspect of the proceedings have received little attention thus far. When I made enquiries as to whether this matter could be heard in Sydney, the father’s instructor indicated she had had some matters recently listed in April and May 2019 but that it would depend on whose docket. I have no reason to doubt this information but my enquiries with the Sydney case management judge is not so optimistic. As I indicated during the hearing, I have had a final hearing fall out of my list in March 2019 and am prepared to expedite this matter particularly considering the amount of material the parties have already gathered, including a private family report. With the court resources stretched as they are, it would not have been possible to obtain a court ordered report within that time frame.I have some concerns about how the parties will manage handovers between the children. Neither have provided the court with a firm proposal. I am, however, satisfied that the father’s time should progress to supervised time before the final hearing. I will order that there be a transition where the next visit is fully supervised and the next two visits the first two hours are supervised. The purpose of this is to ease the children into it and to give the mother some assurance. I have no doubt that the supervisor will let the mother know how the children cope when she leaves. I am concerned that the parties do not have a firm location for handover when the father’s time moves to unsupervised time. I note that the mother wants the time to remain supervised. That is not supported by the family report writer and I note that the observations from the supervisor are positive, particularly with respect to how the father handled [X] having an anxiety attack.I am not satisfied that it would be in the best interests of the children to have overnight time at this stage. Nor is it in their interests to travel to NSW. I acknowledge that this places significant limits on the father’ time with the children and means they will not see their extended paternal family for the next several months unless they travel to Melbourne. The allegations with respect to the nature and extent of family violence during the parties’ relationship will need to be explored at final hearing. I cannot ignore the allegations. Whilst the father’s face to face time with the children pending the final hearing or further order is restrictive, he will still be able to maintain his relationship with the children without putting them under too much pressure by requiring them to travel to NSW and the spend overnights with him. Given that I am only ordering day visits it makes sense that those continue to be in Melbourne unless the parties agree otherwise via their lawyers.Given the funds the parties have expended on a private family report and other expert reports, I will order that the parties attend a conciliation conference rather than private mediation.I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge HarlandDate: 8 November 2018

Ratio Decidendi

Legal Principle Established

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