MARBBY & MARBBY

[2018] FCCA 2298

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARBBY & MARBBY [2018] FCCA 2298

Catchwords:
FAMILY LAW – Stay application – impractical proposals by mother – application dismissed.

Cases cited:

Kay v B [2006] FCA 848

Applicant: MR MARBBY

Respondent: MS MARBBY

File Number: BRC 138 of 2018

Judgment of: Judge Egan

Hearing date: 17 August 2018

Date of Last Submission: 17 August 2018

Delivered at: Brisbane

Delivered on: 17 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Carlton

Solicitors for the Applicant: Wiltshire Family Law

Solicitors for the Respondent: Smithson Lawyers

ORDERS

1. That the Application in a case filed by the mother on 18 July 2018 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 138 of 2018

MR MARBBY

Applicant

And

MS MARBBY

Respondent

REASONS FOR JUDGMENT

1. On 31 May 2018, the Court made orders requiring the mother to re-enrol the two children of the marriage at the School A.  She had earlier, unilaterally, and without the knowledge of the father, removed the children from the School A.  That school was the only school that the children had ever known, and Suburb A had been the place of home for the children for all of their lives.  At the hearing on 31 May 2018, the mother raised the issue of domestic violence allegations which had made by her against the father.

2. She pointed out that there was in existence an order which has been consented to by the father without admission.  However, it was the Court’s view, on the previous occasion that the matter had proceeded for an interim hearing, that the paramount interests of the children and their welfare was best served by the children being returned to School A, and for them to live with their father should the mother not return to live within a five kilometre radius of such school.

3. The mother has elected post the making of that order to continue living at Town K, which is a small settlement in the hills of Region 1 New South Wales.  Mr Carlton of counsel today conceded, on behalf of the mother, that the drive between Town K and Suburb A is about one and a half hours.  The application in a case filed by the mother on 18 July 2018 seeks the following orders:

   1. That Orders 1, 2 and 3 of the Orders dated 31 May 2018 be stayed pending the outcome of the Applicant’s Notice of Appeal filed on 28 June 2018 or until further Order of the Court.

   2. That pending the outcome of the Applicant’s Notice of Appeal filed on 28 June 2018, the Children live with the Applicant Mother in Town K in the State of New South Wales and spend time with the Respondent Father each alternate weekend from 5:00pm Friday until 5:00pm Sunday.

   3. That pending the outcome of the Notice of Appeal (or further Order of this Honourable Court), the children remain enrolled at Town K Primary School.

   4. In the alternate to Order 3, that pending the outcome of the Notice of Appeal (or further Order of this Honourable Court), the children remain enrolled at School A but remain living with the Mother in Town K and spend time with the Father pursuant to Order 2 hereof.

   5. That changeovers be effected at the McDonald’s Restaurant at Suburb B.

   6. Any further Order the Honourable Court deem meet.

   7. Costs.

4. The orders sought in paragraphs 2 and 3 of the application in a case constitute what is the primary position of the mother, as indicated by her counsel today, namely, that the children live with the mother in Town K, attend school during the week at Town K, and spend time with the father each alternate weekend from 5 pm Friday until 5 pm Sunday.  The order sought in paragraph 4 is that in the alternative to the order sought in paragraph 3, the children remain enrolled at the School A until the outcome of the appeal against the making of the orders of 31 May 2018, that the children travel between Town K and Suburb A during the week for the purpose of attending school at the School A, but that they remain living with the mother in Town K.

5. At the hearing today, counsel for the mother indicated that order 4 was not, in fact, the order in the alternative now sought by the mother.  Rather, a proposal was made, in the alternative, that the children live three days a week with the maternal grandparents and the mother at Suburb C, travelling to the School A on each of those days, and otherwise that they live with the mother in Town K and travel the one and a half hours each way per day for the other two days of the week.

6. That application was not formally sought as an amendment to the application in a case filed 18 July 2018, nor was it fully particularised in oral submissions made before me today.  When the matter was last before the Court on 31 May 2018, the Court was cognisant of the allegations, unsubstantiated as they were, of domestic violence.  The material before the Court on that day filed on behalf of the mother was self-evident in that regard.

7. Notwithstanding those allegations, both uncorroborated and unsubstantiated, the Court was of the view that the children should remain living at Suburb A.  In the Full Court decision of the Family Court in the case of  Kay v B [2006] FCA 848, it was said that:

   Granting or refusal of a stay involves an exercise of discretion by a trial judge.  Whilst such discretion must be exercised judicially, in cases involving children, we accept that from time to time circumstances in existence at the date of the orders, or which occur from the date of the order until the hearing of a stay application may be relevant matters to be considered in the exercise in discretion in determining whether or not to grant the stay.  The interests of the child would not be promoted by an inflexible requirement of presumption, in every case, to maintain the status quo prior to the making of orders, the subject of the stay application, and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders.

8. It is apparent from that part of the judgment of the Full Court that the interests of the child must always be considered paramount when considering stay issues.  In this case, it is considered that it is in the best interests of the children for them to remain in their present living arrangements.  I do not consider that the order sought in paragraph 2 of the application in a case filed on 18 July 2018 is at all reasonable.  The distance to be travelled between Town K and Suburb A per day, as countenanced by such proposed order, would be an extremely taxing exercise, both on the part of the driver of any vehicle conveying the children, as well as upon the children themselves.  It shows a lack of insight on the part of the mother in that regard. The proposal was impractical.

9. The topography itself between Town K and Suburb A, which I take note of as a matter of judicial notice, is such that a significant mountain range would have to be climbed each day on winding roads for that proposal to be facilitated.  It suggests, in my view, a lack of thought on the part of the mother when seeking such an order.  The same considerations apply, though to a lesser extent, in relation to the order sought in paragraph 4, as it presently stands, for the same reasons.  Further, the unspecified oral proposal to amend the orders sought as an alternative in order 4 of the application in a case filed on 18 July 2018 (The Suburb C Option) is so lacking in specificity that it is unable to be properly assessed.

10. There is no affidavit which has been filed on behalf of either of the maternal grandparents, the state of health of those maternal grandparents is unknown, the proposed living arrangements at the maternal grandparents’ home at Suburb C are unknown, and the relationship between the children of the marriage and the maternal grandparents is unknown.  There is simply no information before the Court upon which it can act on such an unspecified and vague application.

11. In all of the circumstances, I consider that the children’s interests and welfare are best served by the children remaining in Suburb A and continuing to attend the School A.  I dismiss the application.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 20 September 2018