Marshall and Marshall
[2012] FMCAfam 47
•18 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARSHALL & MARSHALL | [2012] FMCAfam 47 |
| FAMILY LAW – Parenting – urgent application – interim decision – relocation from south east Queensland to far north Queensland – considerations for urgent application – Court declines to make decision. |
| Family Law Act 1975, ss.60CC, 65DAA |
| Goode & Goode (2006) 36 Fam LR 422, (2006) FLC 93-286 |
| Applicant: | MR MARSHALL |
| Respondent: | MS MARSHALL |
| File Number: | BRC 572 of 2011 |
| Judgment of: | Coates FM |
| Hearing date: | 18 January 2012 |
| Date of Last Submission: | 18 January 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 18 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms C Carew |
| Solicitors for the Applicant: | James & Co. Lawyers |
| Counsel for the Respondent: | Mr J Selfridge |
| Solicitors for the Respondent: | Geldard Sherrington Lawyers |
ORDERS
That the Court declines to make a decision on an urgent basis in relation to the interim relocation of the children [X] born [in] 2001 and [Y] born [in] 2003.
That this matter be adjourned for Mention at 9.30 am on 20 February 2012 in the Federal Magistrates Court of Australia at Bundaberg.
That in the event the mother relocates to [Suburb B], the mother be at liberty to appear by telephone on 20 February 2012.
IT IS NOTED that publication of this judgment under the pseudonym Marshall & Marshall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 572 of 2011
| MR MARSHALL |
Applicant
And
| MS MARSHALL |
Respondent
REASONS FOR JUDGMENT
This matter comes before me today, Tuesday 18 January 2012, as an urgent matter, on the basis that the mother should be allowed an interim order to relocate two children from [Suburb A] in Queensland to [Suburb B], a remote [town] in Queensland.
The Application was filed 8 December 2011 and an administrative decision taken that it was an urgent matter.
The children involved are [X], aged 11 and her brother [Y], aged nine.
The relocation Application is opposed by the father.
The children, under a parenting agreement made on 12 April 2011, currently spend five days and four nights with the father every fortnight, as well as half of the school holiday period.
It is proposed that they spend the majority of school holiday time with him if the move is allowed.
The mother’s main reason advanced for the move is that she will double her income to just under $100,000 a year as an employee of the [omitted organisation] in a remote area.
As she is the main income earner, the reason is important, but it is not the sole consideration to be taken into account when making a best interests decision under the Family Law Act 1975 (“the Act”). She advances other reasons as well, but of importance, she says the children have a good relationship with the father.
I read the material and heard the submissions to determine whether the matter had that urgent quality whereby I would consider making the orders sort.
I have decided that this is not a matter which requires consideration on an urgent basis, especially when the Court is being asked to make a decision of major significance, one which could be described as momentous in these children’s lives – which is to move them thousands of kilometres from their father’s location in circumstances where they have always known him and until separation in mid-2010, lived with the both the mother and the father.
That the mother has possibly taken steps to accept the position in [Suburb B], that she has possibly left the Application to the last moment or that she possibly has made other unilateral decisions is not the basis on which the Court will be moved to examine her Application to relocate these children on an interim basis.
There is so much evidence lacking, particularly independent evidence taking into account all of the considerations under the Act that it would be quite wrong to make an interim relocation decision which is at the heart of the actual dispute-in-issue, without proper and full evidence before the Court.
While Goode & Goode (2006) 36 Fam LR 422, (2006) FLC 93-286 set out the manner in which interim decisions are made and would not preclude consideration of an interim relocation, such a matter could only proceed on an urgent basis if there was evidence that it should be made on an urgent basis.
While that evidence could not be categorised, it could possibly include issues of severe family violence or need for otherwise unavailable medical facilities or some factual situation which needs no or very little explanation as to why there is urgency.
Mere employment opportunity alone, without evidence of all of the s.60CC factors, does not meet the need for an urgent hearing. It is not only the s.60CC factors which need consideration. Without evidence upon which to make the parental responsibility decision the Court would be prevented from considering the living arrangements under s.65DAA if a shared parental responsibility order was made.
Such a decision in the circumstances here would not be a proper exercise of discretion and would have been made in error.
In the circumstances, I decline to make a decision. Such a course does not prevent the mother being in [Suburb B] to begin a new job next Monday, 23 January 2012, because the children could live with the father until the matter can be properly decided.
I will adjourn the matter for Mention in Bundaberg on 20 February 2012 to determine the future of the matter. If the mother has relocated to [Suburb B], she will have leave to appear by telephone.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Coates FM
Date: 18 January 2012
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