MANLEY & MANLEY
[2010] FMCAfam 707
•15 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANLEY & MANLEY | [2010] FMCAfam 707 |
| FAMILY LAW – Children – interim parenting orders – one child aged five years living with mother in Queensland – whether mother should return the child to live in Sydney – relocation – unilateral decision by the mother. PRACTICE & PROCEDURE – Change of venue – whether application should be transferred to the Brisbane Registry. |
| Family Law Act 1975, ss.11F, 60CA, 60CC, 61DA, 65DAA |
| Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343 Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 MRR v GR [2010] HCA 4 Marvel & Marvel (No.2) [2010] FamCAFC 101 |
| Applicant: | MR MANLEY |
| Respondent: | MS MANLEY |
| File Number: | SYC 3783 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 April 2010 |
| Date of Last Submission: | 6 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 15 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Richards |
| Solicitors for the Applicant: | Robertson Saxton Primrose Dunn |
| Solicitor for the Respondent: | Mr Cooper |
| Solicitors for the Respondent: | Charles Cooper Lawyers |
ORDERS UNTIL FURTHER ORDER
That the Respondent Mother do all things necessary to return the child [X] born [in] 2005 to reside in the Sydney metropolitan area within one (1) month from the date of these Orders.
That the parties enrol the child in such primary school in the Sydney metropolitan area as they shall agree and in default of agreement at the [V] School within one (1) month from the date of these Orders.
That the child live with the Father as follows:
(a)For each alternate weekend during school term time from after school on the Friday until the commencement of school on the Monday;
(b)For the first half of each of the New South Wales school holiday periods with the exception of the Christmas/January school holidays commencing at 9:00am on the Saturday after school term ends and concluding at 5:00pm on the middle Saturday of the school holiday period;
(c)For a period of two (2) weeks during the Christmas/January school holiday period commencing on 2 January in each year;
(d)For a period of two (2) hours on the Father’s birthday;
(e)From 9:00am until 5:00pm on Fathers’ Day in each year if that day falls on a weekend when the child would not otherwise be living with the Father;
(f)For a period of three (3) hours on Christmas Day; and
(g)At such other times as the parties shall agree.
If Mothers’ Day falls on a weekend when the child would otherwise be living with the Father then the Father is to return the child to the Mother before 9:00am on Mothers’ Day.
For the purpose of Order 3(a) the Father is to collect the child from school immediately after school finishes on the Friday and return the child to school on the Monday morning before school commences.
The Father and Mother by themselves, their servants or agents are restrained from removing or attempting to remove the child [X] date of birth [omitted] 2005 from the Commonwealth of Australia.
The Marshal of the Federal Magistrates Court of Australia and all officer of the Australian Federal Police and of the police forces of all States and Territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all steps necessary to prohibit either party from removing or attempting to remove the said child from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal police and the Secretary of the Department of immigration and Citizenship are to take all necessary steps immediately to place the name of the said child on the Airport Watch List also known as the PACE Alert System at all points of arrival and departure in and from the Commonwealth of Australia.
The Father and the Mother are to advise each other in writing of any change to their residential address and landline and mobile telephone numbers within forty eight (48) hours of such change.
The Application to transfer the proceeding to the Brisbane Registry is denied.
IT IS NOTED that publication of this judgment under the pseudonym Manley & Manley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3783 of 2008
| MR MANLEY |
Applicant
And
| MS MANLEY |
Respondent
REASONS FOR JUDGMENT
Application
This is an application brought by the Father of a little girl named [X] for orders that the Mother return the child to live in Sydney and attend school. He also seeks interim orders that the child would live with him each alternate week and that the parties be restrained from removing the child from the Commonwealth of Australia.
The Mother opposes those orders and, by her Response filed on
31st March 2010, seeks orders that would see [X] and herself remaining in Queensland and the Father seeing the child for two weekends a month. She also applies to transfer the venue of this application to the Brisbane Registry of the Court.
Background
The Mother’s solicitor, Mr Cooper, has prepared a useful chronology, which has been relied upon to provide non-contentious background information for the purposes of this application.
The parties commenced cohabitation in 1999 and were married [in] 2001. The Father was born [in] 1962 and the Mother was born [in] 1964.
The Father has an adult daughter from an earlier relationship who lives in Brisbane. Her name is [omitted].
The parties separated in April 2003 and the Mother lived on the Gold Coast. They later resumed cohabitation.
The child who is the subject of this application, [X], was born [in] 2005. She is now five years old.
The parties separated under the one roof in September 2007. That situation remained until February 2008, when the Father moved out. The Mother obtained part time employment with [omitted].
The Father commenced spending time with the child from February 2008, although the parties disagree about the amount of time he spent with her.
In May 2008 the Father entered into a relationship with another woman. He commenced living with her in July 2008.
On 27th June 2008 the Mother commenced proceedings in the Family Court of Australia, seeking interim and final property orders.
On 16th July 2008 Judicial Registrar Johnston made orders by consent that the Mother was to have exclusive and occupation of the former matrimonial home in [omitted], New South Wales. Final property orders were made by consent by a Registrar of the Family Court on
14th October 2008.
The Mother moved to the Gold Coast with the child for a short time and returned to Sydney in November 2008, where she obtained rented accommodation.
On 23rd December 2008 the Father made an application for divorce in this Court. The application was discontinued by leave on 3rd February 2009.
The Mother obtained part time employment with the [omitted] in February 2009. She resided in the former matrimonial home at [omitted] until it was sold in January 2010.
At some stage in late 2009, the Mother told the Father that she was planning to move to Queensland. The parties differ as to whether this took place in September or October 2009, or in November 2009.
The Father was spending each alternate weekend with the child until the commencement of 2010.
On 7th January 2010 the Mother moved to live in Queensland with the child, who commenced attending [B] School later that month.
The Mother purchased a home unit and obtained employment with the [omitted] on the Gold Coast in Queensland.
On 4th February 2010 the Father filed the present application.
On 22nd March 2010 the parties were ordered to attend a Child Dispute Conference under the provisions of s.11F of the Family Law Act 1975. They attended the conference on 24th March. The Father attended personally and the Mother attended by telephone.
In the Family Consultant Memorandum to the Court, the Family Consultant reported that the parents were unable to agree about whether the child should be permitted to remain living on the Gold Coast or return to live in Sydney. The Family Consultant reported:
If [X] is to remain living on the Gold Coast in the interim, it is recommended that she spend time with her father on a fortnightly (rather than a monthly as proposed by the Mother) basis, with alternating visits in Sydney and Brisbane. This shares the financial burden and inconvenience but also allows [X] to spend time in her father’s home as well as having her father involved in her community on the Gold Coast. Neither parent was really able to focus on these arrangements because they are both hopeful of being successful at the interim hearing.[1]
[1] Family Consultant Memorandum dated 24 March 2010.
The application was listed for interim hearing on 6th April 2010.
The Parties’ Proposals
The Father’s proposals are set out in his application for interim orders. Essentially, he seeks orders that:
a)The child be immediately returned to Sydney;
b)The child should attend the [P] School in [P], a suburb of Sydney;
c)That during school terms the child would live with him in Sydney each alternate week from after school Monday until before school the following Monday and live with the Mother every other week;
d)That the child should live with him for half of each New South Wales school holiday period;
e)That both parents be restrained from removing the child from the Commonwealth of Australia;
f)That the child’s name be placed on the airport watch list, which is also known as the PACE Alert System; and
g)That the parents advise each other of any change or residential address.
The Mother’s proposals are set out in her amended Response, filed on 31st March 2010. As her solicitor set out in his Case Summary, the Mother seeks (in summary) orders providing that:
a)She and [X] should remain living in Queensland;
b)[X] continues to live with her;
c)That [X] spends two weekends a month with her father, one weekend in Sydney and one on the Gold Coast, and for half of each school holiday period; and
d)The proceedings are to be transferred to the Brisbane Registry of the Court for hearing.
The Affidavit Evidence
The Father relied on his affidavits sworn on 29th January and
31st march 2010.
In his first affidavit the Father deposed that:
a)The parties separated in September 2007 and divorced in March 2009;[2]
[2] Paragraph [5]
b)Since separation he has been paying child support, currently in the amount of $708.00 per month;[3]
[3] Ibid at [6]
c)After separation he moved to rental premises in [omitted]. After the property settlement was finalised he purchased an apartment in [V], New South Wales, which he owns jointly with his partner, whose name is Ms T. He and Ms T have resided together since about July 2008.[4]
[4] Ibid at [8] & [9]
d)From separation until May 2008 he spent time with the child approximately 6 days each week, and from then until January 2010 he saw her for two or three nights every weekend;[5]
[5] Ibid at [10] & [11]
e)In about November 2009 the Mother said to him:
“I would like to move to Queensland with [X].”
f)He replied:
“No I don’t want [X] to move to Queensland. Everything is set up for her to go to school in Sydney next year”.[6]
g)The Mother and [X] travelled to New Zealand over Christmas 2009, with the Father’s consent. Upon their return, [X] stayed with the Father from 2nd to 6th January 2010.[7]
h)When the Father returned the child to the Mother on 6th January, the Mother said to him:
“I am taking [X] away tomorrow for a few days”.[8]
[6] Ibid at [13]
[7] Ibid at [17] & [18]
[8] Ibid at [19]
i)The Father later had a telephone conversation with a man who had been in a relationship with the Mother after the separation who informed him that the Mother had sold the former matrimonial home and had moved to Queensland permanently.[9]
j)The Father and Mother had enrolled the child at the [P] School, which was a school at which a number of the child’s friends were also enrolled.[10]
k)The Father annexed copies of two emails from the Mother dated 13th and 15th January 2010.[11]
l)In a further email to the father on 24th January, the Mother told him of her intention to remain in Queensland indefinitely with her mother and [X]:
[9] Ibid at [20]
[10] Ibid at [21] & [22]
[11] Ibid at [24]
It is my intention to be here for mum and to take care of [X] in the first instance…
I anticipate being located here to assist with my own family and also to gain family support for [X] and myself…
[X] has already participated in nippers and swimming lessons here and as school is due to start, I will be looking at schools in the next few days. As stated in our conversation, this will most likely be [B] School as it appears to be well regarded…[12]
[12] Ibid annexure “B”
In that same email, the Mother informed the Father that she had obtained a New Zealand passport for the child. The Mother was born in New Zealand.
The Father deposes that he is unable to move to Queensland, as he and his partner have recently purchased a home in Sydney and his home is located in Sydney.
The Father believes that the Mother would have good employment prospects in Sydney.
The Father has spoken to the child on the telephone and has ascertained that she has started school.
In his later affidavit, sworn on 31st March 2010, the Father deposes to his belief that it is very hard for him to maintain a close relationship with [X] if she is living in Queensland. He estimates the cost of travelling to Queensland for two days to see the child at $850.00, including air fares and accommodation.[13]
[13] Affidavit of Mr Manley 31.3.2010 at paragraph [17]
The Father also deposed that the child would no longer be eligible to attend [P] School, as she no longer lives in the area. However, he would like her to attend the [V] School, which is located only 200 metres from his home in [V].[14]
[14] Ibid at [26]
The Father opposes the matter being transferred to the Brisbane Registry of the Court.
In her affidavit sworn on 16th March 2010, the Mother deposed that:
a)Whilst she was living in Sydney, her father was taken ill in 2005 and her mother had also been unwell. She went to the Gold Coast to help look after her father for a period of about 18 months until he died in July 2007. The child [X] was with her the whole time, and the Father had no objection.[15]
[15] Affidavit of Ms Manley 16.3.2010 at paragraph [9]
b)She returned to Sydney in July 2007 and the parties separated in September of that year.[16]
[16] Ibid at [10]
c)The child attends [B] School, which is a one minute walk from her home.[17]
[17] Ibid at [16]
d)The parties went through a process of mediation which was unsuccessful because in her view the Father “told lies and manipulated the truth”.[18]
[18] Affidavit of Ms Manley 16.3.2010 at [24]
e)The Mother felt in fear of the Father during the separation under the one roof.[19]
[19] Ibid at [25]
f)The parties arranged that [X] would spend alternate weekends with the Father but there was no arrangement for her to spend school holidays with him.[20]
[20] Ibid at [32] & [33]
g)The Mother had difficulty surviving financially after the property settlement because she was out of work at times. She had difficulty obtaining contract work.[21]
[21] Ibid at [37] & [38]
h)Her mother had not coped well after her father’s death and had fallen and broken limbs on two occasions. She requires some assistance from the Mother, but is able to assist her in caring for the child.[22]
[22] Ibid at [41]
i)The Mother told the Father in September or October 2009 that she was thinking of moving to Queensland for financial and family reasons. Whilst the Father was not happy with the proposal, he indicated that he could consider her offer to negotiate an arrangement that he would pay less child support.[23]
j)The Mother moved to Queensland with the child on 7th January 2010. She has purchased a 3 bedroom apartment in [B].[24]
k)The Mother has been able to find permanent employment with [omitted].[25]
l)The Mother deposes that she notified the Father of her move to Queensland.[26]
m)The Father had visited the child in Queensland on one occasion, but the Mother has told him that she has no objection to his visiting her regularly.[27]
n)The Father spent a total of 60 nights with the child between February 2008 and December 2009 out of a total of 699 nights.[28]
o)The Mother claims that the child is happy and content where she is and has expressed a wish to live there “forever”.[29]
p)The Mother states that the Father can visit the child regularly.[30]
q)She expresses concern about the practice of the Father of walking around naked and allowing the child to be in bed with him and his girlfriend when they are both naked.[31]
r)The Mother purchased a unit on the Gold coast at considerable expense, covered by a substantial mortgage debt. The child is well established at school and the Father is only 1 hour and 20 minutes away by air. The Father can afford the cost of travelling to the Gold coast to see his daughter.[32]
[23] Ibid at [44]
[24] Ibid at [46]
[25] Ibid at [47]
[26] Ibid at [49]
[27] Affidavit of Ms Manley 16.3.2010 at paragraph [52]
[28] Ibid at [55]
[29] Ibid at [57(a)]
[30] Ibid at [57(d)]
[31] Ibid at 57(i)]
[32] Ibid at [57(m)]
The Mother also relies on a brief affidavit by her mother, Ms B, sworn 16th March 2010. Ms B deposes that her own health and stability have deteriorated since her husband in 2007. She suffers from Meniere’s Disease, which affects her hearing and her balance, and can leave her disorientated and nauseous. She has fallen on two occasions, in 2007 and 2009, breaking her wrist on each occasion. She also suffers from panic attacks. She has moved in to live with her daughter and granddaughter so that her daughter can look after her. If her daughter were to return to Sydney, it would make life extremely difficult for her.
Submissions
It was submitted for the Father that this is a case where the Mother unilaterally moved to Queensland without the consent of the Father. There is no evidence of family violence or abuse. The Mother alleges intimidation by the Father, which he denies.
The Mother, it was submitted, unilaterally the child’s residence and enrolled her at the [B] School. This was all done without any consultation. The Father has been presented with a fait accompli by the Mother, in describing her employment and purchase of her home unit. The Mother undertook a concerted plan, which commenced well before January 2010.
The question of equal shared parental responsibility is important. It is not practicable for there to be equal time between the parents, or even for the child to spend substantial time with the Father.
Mr Cooper appeared for the Mother by telephone from Queensland. He submitted that the Mother had always disclosed her concerns about her mother’s ill health. He referred the Court to the decision of Boland J in Morgan & Miles[33] at [79], where her Honour set out the matters that a Court must consider in relocation cases, and also at [91]. He also referred to the Full Court decision in Goode & Goode[34] at [81] and [82].
[33] [2007] FamCA 1230; (2007) FLC 93-343
[34] [2006] FamCA 1346; (2006) FLC 93-286
Mr Cooper submitted that, bearing in mind the facts that the child had been at school for nine weeks and the Mother had obtained employment on the Gold Coast, there should be no order requiring the Mother to move back to Sydney with the child before the Family Report was released.
As to the change of venue application, it was submitted that the final hearing would take two days, and may be more expeditiously held in Brisbane.
In reply, it was submitted for the Father that the change of venue that was being argued was only necessitated by the Mother’s unilateral action in relocating.
The Court was referred to the Full Court decision in McCall & Clark[35] and the decision of the High Court of Australia in MRR v GR[36].
The Relevant Law
[35] [2009] FamCAFC 92; (2009) FLC 93-405
[36] [2010] HCA 4
In deciding whether to make a parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration (Family Law Act 1975, s.60CA). The Court determines what is in the child’s best interests by considering the matters set out in s.60CC of the Act. The primary considerations are set out in s.60CC(2):
a)The benefit to the child of having a meaningful relationship with both parents; and
b)The need to protect the child from physical or psychological harm from abuse, neglect or family violence.
Additional considerations are set out in s.60CC(3) and include any views expressed by the child, subject to the child’s maturity and level of understanding, the nature of the child’s relationship with parents and other persons, including grandparents, the willingness and ability of each parent to encourage a close relationship with the other parent, the likely effect of changes in the child’s circumstances and the capacity of each parent and other person to provide for the child’s needs.
In any interim hearing, the Court must consider whether the presumption in s.61DA of the Act that it is in the best interests of the child for the parents to have equal shared parental responsibility does apply (see Goode & Goode[37]). This must be considered even if it is not argued by the parties at the hearing (see Marvel & Marvel (No.2)[38]
[37] supra
[38] [2010] FamCAFC 101
If a parenting order provides that a child’s parents are to have equal shared parental responsibility, the Court must consider whether it is in the best interests of the child to spend equal time with each of the parents (s.65DAA).
In Morgan & Miles[39], an appeal from a decision of this Court, Boland J set out at [79] what a court must do when considering whether a child should live with a parent who proposes to relocate. These considerations (summarised) require that the court:
·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
·Make orders having regard to the child’s best interests as the paramount but not the sole consideration.
·Be guided in its determination by the objects and principles underpinning the legislation.
·Apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing.
·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects of parental responsibility.
·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals.
[39] supra
Her Honour went on to state at [80]:
It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
Conclusions
This is a case where the Mother has made a unilateral decision to relocate from Sydney to the Gold Coast in Queensland. It is clear that she made arrangements to do so without telling the Father what she proposed to do, and essentially presented him with a fait accompli. What she is now doing is presenting that same fait accompli to the Court.
The Mother does not need to provide compelling reasons to justify the move, and she has demonstrated reasons that clearly meet her immediate needs. She has for some time wished to live in Queensland and she has given evidence on affidavit that she has purchased a home unit and has moved her mother into the home. She is clearly concerned for her mother’s health, and her desire to look after mother is a worthy one. No doubt her mother can assist her with the care of [X].
The move to the Gold Coast has led to a significant reduction in the amount of time that the Father has spent with the child, which would impact on her having a meaningful relationship with him. There is no evidence of any threat to the child of physical or psychological harm.
The Mother has deposed in her affidavit that the child has said that she likes living where she is and wants to stay there. No doubt she does, but that is a hardly surprising thing for a child to say in the circumstances. The Mother’s current arrangements mean that the child spends time with her maternal grandmother, and there is no evidence to show that this is other than in her best interests.
However, the Mother has made her move to suit her own priorities, and she is effectively saying that it is neither inconvenient nor prohibitively expensive for the Father to fly to Queensland regularly to see the child. I am not satisfied that this approach is necessarily in the child’s best interests at this stage.
The Father’s affidavit evidence indicates that he wishes to spend time with his daughter and play a significant role in her life. It appears that the Mother’s action in removing herself and the child to Queensland has hindered his ability to do that, which does not, on the evidence available to the Court, appear to be in the child’s best interests.
Whilst I have considered whether the presumption of equal shared parental responsibility is in the best interests of the child should apply, the evidence does not allow a definitive finding to be made at this stage. In any event, the matter will need to be reconsidered at a final hearing, for which I would see a Family Report as being a desirable resource to assist the Court.
The Mother has made her own decision to relocate the child to Queensland, not only without consulting the Father, but in a way that has resulted in her concealing her plans from him until she had moved. There is no evidence that she was obliged to move away from him for her own safety or for any reason other than her own wishes. This is an inappropriate way to deal with the issue of relocation, and the Mother will be required to move the child’s residence back to the Sydney Metropolitan area until the matter can be resolved at a final hearing.
Consequently, it is not appropriate to transfer the venue of this application to the Brisbane Registry.
I note that the Mother has disclosed that she has obtained a New Zealand passport for the child. As the Mother has demonstrated a capacity to take major decisions about the child’s residence without consulting the Father, it seems to be appropriate at this stage to make orders placing the child’s name on the Airport Watch List.
I note the Mother’s concern expressed in her affidavit about the Father appearing naked in the presence of the child. In my view this is an undesirable practice if it has occurred and it should not continue.
The parties are not divorced, although the Father apparently thought he had been. As the application was discontinued, and the marital relationship clearly appears to have irretrievably broken down, the parties’ lawyers should consider a divorce application.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 8 July 2010
0
3
1