MARBBY & MARBBY

[2018] FCCA 1744

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARBBY & MARBBY [2018] FCCA 1744

Catchwords:
FAMILY LAW – Parenting –unilateral relocation by mother – best interests of children – relocation not in best interests of children – order for re-enrolment of children at former school.

Legislation:

Family Law Act 1975, s.60CC

Applicant: MS MARBBY

Respondent: MR MARBBY

File Number: BRC 138 of 2018

Judgment of: Judge Egan

Hearing date: 31 May 2018

Date of Last Submission: 31 May 2018

Delivered at: Brisbane

Delivered on: 31 May 2018

REPRESENTATION

Applicant: Self Represented

Respondent: Self Represented

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the children [X] born on 2010 and [Y] born on 2008 (“the children”) shall live with the mother conditional upon:

   (a)The mother returning to live within a five (5) kilometre radius of the Town A State Primary School within two (2) weeks of the date hereof; and

   (b)The Applicant and Respondent doing all such things and executing all such documents as to effect the re-enrolment of the children at the Town A State Primary School and that the children are to recommence attendance at such school no later than Monday, 11 June 2018.

2. That should the Applicant fail to comply with the conditions contained in Order 1 hereof, the children are to live with the father at the former  matrimonial home situated at Town A in the State of Queensland.

3. That should the children live with the Applicant pursuant to the Order 1 hereof, the children shall spend time with the father at all such times as may be agreed to by the parties, but at least:

   (a)From 5.00pm each alternate Friday until 5.00pm each alternate Sunday commencing on 8 June 2018.

   (b)The first half of all school holidays;

4. That changeovers take place outside the “Restaurant”, Town A with the children to walk a distance of at least thirty (30) metres from any vehicle to the front of the said Inn for the purpose of any such changeover.

5. That during the time the children are with either parent, that parent shall:

   (a)respect the privacy of the other parent and not question the child about the personal life of the other parent;

   (b)speak of the other parent respectfully; and

   (c)not denigrate or insult the other parent in the presence of hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child

Family Report

1. That a Family Consultant be appointed by the Senior Family Consultant of the Federal Circuit Court of Australia Brisbane Registry in this matter to prepare a family report (“report”) pursuant to s.62G of the Family Law Act 1975 (as amended) (“the Act”).

2. That in addition to reporting any matters that the Family Consultant considers important to the welfare of the children and the factors contained in s.60CC of the Act the following opinions should be included:

   (a)what, if any, interventions might assist the parties to achieve a cooperative parenting outcome; and

   (b)what, if any, interventions would assist the parties to resolve potential disputes about the parenting orders or the changing needs of the children in the future.

3. That it should be noted a child should not be required to express his or her views in relation to any matter but in the event that a child does express views, the Family Consultant should also canvass and report the views and likely consequences of and for the children if the Court did not reach a conclusion which accorded with the children’s views.

4. That the parties shall attend appointments with the Family Consultant on a date and time to be advised by the Family Consultant and they shall facilitate the attendance of the children for those appointments (unless otherwise advised).

5. That the Federal Circuit Court of Australia be responsible for payment of the cost of preparation of the report.

6. That the Family Consultant shall have leave to inspect subpoenaed documents produced to the Court.

7. That the Family Consultant have liberty to list the matter for further directions and for the purpose of that mention, the Family Consultant and the parties have leave to appear on the telephone. For the purpose of listing the matter the Family Consultant has leave to contact the Associate to the presiding Judge.

Release of report

1. That upon receipt of the report, the Court will provide a copy to each party (or their solicitor, if any) and to any Independent Children’s Lawyer in the proceedings.

2. That unless a party objects, in writing, within fourteen (14) days of the date of releasing the report, copies of the report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

   (a)A Children’s Court;

   (b)A child protection authority;

   (c)A State or Territory legal aid authority; and

   (d)A convener of any legal dispute resolution conference.

3. That unless otherwise ordered, no person shall release the report, or provide access to the report to any other person.

IT IS NOTED:

A.That pursuant to s.65DA(2) of the Family Law Act 1975 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 the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.

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

MS MARBBY

Applicant

And

MR MARBBY

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. These reasons are in addition to the reasons articulated during the course of argument.  The Respondent father filed a Response on 3 April 2018.  The father, in evidence, clarified that by his Response he sought an order that the children spend at least three school nights during the school week with him and that they also spend half of the school holidays with him.  As it happens, the Response was filed by the father some five days after the mother had unilaterally removed the two children from their previous schooling at the Town A Primary School where the children were respectively enrolled in grades five and three.  The two children are a girl, born on 2008, named [Y], who is nearly 10 years of age, as well as a boy named [X], born on 2010, who is eight years of age.

2. Such children had grown up in the picturesque rural community of Town A for the whole of their lives until they were taken from that environment by their mother and the mother’s partner, without telling the father, on 28 March 2018.  The children are said to be happy and healthy children and there is no reason to believe that they weren’t happy and healthy during the whole of their time whilst living in Town A attending the Town A Primary School. 

3. On the 28^th day of March 2018, before school, the mother handed to each child a pre-prepared typed notice which had been drafted by her so that children could give copies of such notice to their peers at school.  That notice read as follows.  In the middle of the front page appears the sentence:

   We have some news!

4. And then, after two double line spaces, it reads:

   We ([Y] and [X]) are starting a new school in Town B, NSW.  We are a bit nervousited (nervous and excited!) and, of course, a bit sad to be leaving Town A School.  But it’s not the end, guys!

   We have loved being your friend and still wish to see you lots!  If you are receiving this card, we want you to stay in touch PLEASE!!!!!!...

   See details on the other side of this card.  Thank you for being amazing friends! J

5. The husband gave evidence that he first knew that the children had been handing out these notices/cards when a teacher from the school telephoned him and advised him that the children had been so handing out these notices and that he had better get to the school as quickly as he could.  As it transpired, the children were unilaterally removed from the school by the mother who had again, unilaterally, re-enrolled both children at a school to the southwest of Town C in a place called Town B.

6. When I asked the mother what she thought the husband’s reaction would have been, had she first communicated to him her intention to remove the children from the school before she, in fact, did so, she readily conceded that he would have objected to that course of action.  I fully understand how the father felt upon hearing that his children were to leave a school and living environment with which they were familiar and comfortable, and in which they had lived for the whole of their lives.  I consider it was an inconsiderate and thoughtless exercise on the part of the mother to have done so, heedless of the consequences of effectively ceasing regular contact between the father and the children. 

7. Accordingly, I consider that the best interests of the children are served by them returning to both school and their former rural life in the Town A area where they are able to have close contact with their father.  I appreciate that, when making the orders that I intend to make, that I do so in the face of unsubstantiated allegations of family violence by the father against the mother, allegations which are impossible at an interlocutory stage to resolve one way or another in terms of issues of credibility.  Certainly, that is impossible on a busy duty day such as today where it is presently almost 5.30 pm of an evening.

8. Accordingly I make the Orders as outlined above.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of JudgeEgan

Date: 12 July 2018