Moray and Schuler

[2018] FCCA 3931

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORAY & SCHULER [2018] FCCA 3931

Catchwords:
FAMILY LAW – Interim relocation – mother relocated with children to Sydney from Melbourne – maternal grandmother is terminally ill – mutual allegations of abuse against both parents – allegation of risk against the mother by the father.

Legislation:

Family Law Act 1975 (Cth) ss.60CC, 65DAA

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode [2006] FamCA 1346

Morgan & Miles [2007] FamCA 1230
Parks & Farmer [2012] FamCAFC 12

Applicant: MR MORAY

Respondent: MS SCHULER

File Number: MLC 12377 of 2018

Judgment of: Judge Harland

Hearing date: 3 December 2018

Date of Last Submission: 3 December 2018

Delivered at: Melbourne

Delivered on: 6 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Sweeney

Solicitors for the Applicant: Glezer Lanteri & Associates

Counsel for the Respondent: Ms Brookes

Solicitors for the Respondent: M & K Lawyers

ORDERS

1. The mother be granted leave to rely on her affidavit sworn 26 November 2018.

2. The matter be adjourned to 23 April 2019 at 10.00am for final hearing (with an estimated hearing time of two days).

3. 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 upon which they intend to rely at trial on or before 14 days before the final hearing.

4. 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.

5. 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.

6. 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:

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

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

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

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

   (h)any other matters  relevant to the decision; and

   (i)a statement of the precise orders sought

7. 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.

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

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

10. There be interim parenting orders, in terms of the Minute of Consent Orders dated 6 December 2018 (“the Minute”) and:

    (a)The minute be placed on the Court file;

    (b)The solicitors for the applicant engross the Minute and deliver a clean, certified, electronic copy of the Minute (“the copy”) to the Chambers of Judge Harland by way of email to [email protected] within seven days; and

    (c)Upon delivery of the copy to the Court, the within orders be extracted and the copy be attached hereto.

MINUTE OF ORDERS

1. The parties have equal shared parental responsibility for the children [X] born …2015 and [Y] born …2017 (“the children”).

2. The children live with the Wife.

3. The Wife be permitted to reside with the children in Metropolitan Sydney until further Order.

4. That until further Order the Husband spend time with the children as follows:

   (4.1)commencing 2.00pm on Thursday, 13 December 2018 and concluding 12.00pm on Monday, 17 December 2018 with the handover to occur at:

   (i)…Coffee Shop near the baggage claim in Domestic Arrivals, Tullamarine Airport, at the commencement (“Melbourne Arrivals”);

   (ii)the Virgin check-in area near domestic departures at Tullamarine Airport, at the conclusion (“Melbourne Departures”);

   (4.2)commencing 10.00am on Tuesday, 25 December 2018 and concluding 2.00pm on Tuesday, 1 January 2019 with handovers to occur at:

   (i)Sydney Airport in Mascot near the Virgin Airlines departure check in counter (“Sydney Departures”) at the commencement; and

   (ii)Sydney Airport in Mascot, near the Virgin Airlines Arrivals Baggage Claim area (“Sydney Arrivals”);

   (4.3)commencing 2.00pm Thursday, 10 January 2019 and concluding at 12.00pm on Monday, 14 January 2019 with handovers to occur in Melbourne at Melbourne Arrivals and Melbourne Departures, respectively;

   (4.4)commencing 2.00pm Thursday, 24 January 2019 and conclude 12.00pm Thursday, 31 January 2019 with handovers to occur in NSW at Sydney Departures and Sydney Arrivals, respectively;

   (4.5)commencing 11.00am Thursday, 7 February 2019 and concluding 2.00pm Monday, 11 February 2018 with handovers to be in Melbourne as follows:

   (i)at Suburb A McDonalds restaurant at the commencement; and

   (ii)at Melbourne Departures at the conclusion;

   (4.6)commencing 12.00pm Friday, 22 February 2019 and concluding 2.00pm on Tuesday, 26 February 2018 with handovers to be in Sydney, NSW as follows:

   (i)McDonalds restaurant at Suburb B, NSW at the commencement, unless otherwise agreed in writing between the parties; and

   (ii)at Suburb B the conclusion of such time, unless otherwise agreed in writing between the parties;

   AND every second fortnight thereafter, until further Order;

   (4.7)commencing 2.00pm Friday, 8 March 2019 and concluding 12.00pm Tuesday, 12 March 2019 with handovers to be in Melbourne as follows:

   (i)at Melbourne Arrivals at the commencement; and

   (ii)at Melbourne Departures at the conclusion,

   AND every second fortnight thereafter, until further Order;

   (4.8)at such other times as agreed between the parties in writing.

IT IS ORDERED BY CONSENT THAT:

1. For the purposes of Order 4 herein:

   (5.1)the parties must purchase the necessary flights for themselves and the children to facilitate delivering the children to the other party in accordance with these Orders (“flights”);

   (5.2)the parties must provide written evidence to each other of any flights purchased for such purpose no later than 72 hours prior to departure, unless otherwise agreed in writing;

   (5.3)the parties must SMS each other upon take-off and arrival (as applicable) with an estimated time for handover at the relevant location pursuant to these Orders;

   (5.4)the parties must use their best endeavours to arrange flights to comply with these Orders, however, they must also allow for reasonable flexibility as to handover times having regard to matters of practicability including, but not limited to, flight availability, flight change/delay, illness and matters beyond their control;

   (5.5)if the children are unable to undertaken return travel to the Wife and/or spend time with the Husband by reason of illness of one or both of them, or the parties, the relevant party must provide a Medical Certificate and make-up time to the other party.

2. For the purposes of paying for flights and/or accommodation and necessary travel expenses of the parties and the children pursuant to these Orders, the Husband must within 72 hours disburse the sum of $20,000 to each party (from monies held in the children’s names under his control) on the following basis:

   (6.1)such sums shall not be treated as allocated to either party for the purposes of any future property adjustment under Section 79;

   (6.2)such sums shall not be deemed characterised for the purposes of any future property or financial claims either party has against the other,

   AND IT IS NOTED the parties are likely to amend their Applications before the Court to include property/financial matters and, if so, the sums referred to herein are to be allocated and characterised by the Trial Judge, unless otherwise agreed.

3. The parties each be at liberty to have FaceTime communication with the children when they are in the care of the other party as follows:

   (7.1)each Tuesday commencing 5.00pm and concluding at 5.30pm, unless otherwise agreed;

   (7.2)each Thursday commencing 5.00pm and concluding at 5.30pm, unless otherwise agreed;

   SAVE in the event that such party has been or will otherwise be spending time with the children on that day.

4. The parties must attend with the children upon Mr K, psychologist, on 6 February 2019 (and/or such other times or date as directed by him) for assessment and to facilitate preparation of a private Family Report on the following basis:

   (8.1)the cost of the report be paid from monies held in the children’s names and the Husband to cause such payment to be made upon request;

   (8.2)the parties must each provide Mr K with copies of material filed by them in these proceedings and the Husband provide any Court Orders by no later than 14 days prior to appointments, or as otherwise requested by Mr K;

   (8.3)that Mr K be at liberty to inspect any subpoenaed material.

5. That in the event that either party cannot personally attend handover, the person facilitating handover on their behalf must be a person who is agreed upon by both parties in writing, in advance of changeover AND IT IS NOTED this Order does not preclude a party having another person of their choosing present at handover.

6. The children be permitted to have liberal communication by telephone or FaceTime at their request with the parent they are not with, and the parties facilitate such communication.

7. That either party notify the other party as soon as practicable of any accident or illness requiring any of the children to have medical treatment, other than treatment of a minor or routine nature, with full details of the accident or illness and relevant medical practitioner.

8. That each party:

   (12.1)comply with all reasonable treatment strategies as recommended by the children’s treating medical practitioners; and

   (12.2)inform the other party of the children’s appointments and authorise all treating medical practitioners to provide full information concerning the children to the other party;

9. That each party keep the other informed of their current contact phone number, email address and home address (whether permanent or temporary), including during holiday contact periods.

10. That without any admission, the parties, their servants and agents be and are hereby restrained from:

    (14.1)making derogatory or denigrating comments about the other or their friends or family to the children (or in the presence or hearing) or allowing the children to remain in the presence of any person making such derogatory or denigrating comments;

    (14.2)discussing these proceedings with the children or in their presence or hearing or allowing the children to remain in the presence of anyone discussing these proceedings.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 12377 of 2018

MR MORAY

Applicant

And

MS SCHULER

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This case concerns interim parenting arrangements for two young children, [X], born …2015, aged three, and [Y], born …2017, aged 21 months. The father is employed as a full-time public servant at Employer. The mother is a medical professional. The parties married on …2014 and separated in October 2018. 

3. The father filed an initiating application on 25 October 2018 seeking orders for the mother and children to return to Melbourne. In that application he did not specify what parenting arrangements he thought should be put in place for the mother to spend time with the children. His application is for the children to live with him. 

4. He filed an amended initiating application on 16 November 2018 and a further affidavit seeking interim orders for sole parental responsibility and for the mother to have supervised time. At the interim hearing he did not pursue orders for supervised time or sole parental responsibility. He sought interim orders that the children live with him, whether or not the mother returns to Melbourne, and that the children spend time with the mother.

5. The father has filed two affidavits by himself in the proceedings, an affidavit by a friend, Ms L, and an affidavit by his psychologist.  The mother filed an affidavit by her and an affidavit by her psychotherapist.

6. Before turning to the substantive issues, the mother sought leave to rely on an affidavit that does not comply with Practice Direction No. 2 of 2017 Interim Family Law Proceedings (from 1 January 2018). She seeks this in circumstances where the father has filed two affidavits and where, particularly with respect to his amended application, his position was seeking sole parental responsibility and supervised time. I am satisfied it is appropriate to grant leave for the mother to rely on the affidavit that she filed despite it being longer than Practice Direction No. 2 requires.

7. There are many factual issues in dispute between the parties in this matter which I cannot determine at interim hearing. Quite properly, both counsel conceded this. One of the major issues in dispute between the parties is who has been the primary carer for the children.  Another major issue in dispute between the parties is whether or not there are any risk issues to the children in the mother’s care. There is also a dispute between the parties as to whether or not the mother unilaterally relocated to Sydney.

8. The father proposes that the children return to Melbourne and that if the mother returns to Melbourne he will advance her $20,000 to assist her in securing rental accommodation. The mother has indicated through her counsel that if the children are ordered to return she will return as well. The father seeks orders that she spend time with the children from 9:00am Tuesday until 9:00am Thursday each week.

9. The mother seeks to remain in Sydney with the children on an interim basis and seeks final orders permitting her to relocate with the children to Sydney. In essence, her proposal at interim hearing is for the father to spend two days a week with the children mainly in Sydney, though every fourth weekend in Melbourne, and for two seven day blocks in Melbourne in January 2019. 

10. There is a dispute between the parties as to the father’s work arrangements in terms of whether or not he can, or how often he can, work remotely, not having Employment weeks. The father says that he cannot continue to travel to Sydney as he has been doing due to his work commitments, whereas the mother says he had told her that he would be able to be in Sydney over the next couple of months, as he does not have Employment weeks. 

11. That is one of the issues that I cannot resolve. One concern I have about the mother’s proposal is that it would see the father being in Sydney every week, which is not sustainable if he needs to be in Melbourne for work. There is not any suggestion, certainly on the father’s case, that he would be in a position to live in Sydney temporarily.  Rather, he has been visiting frequently, and he would say that this is because he has really had no option until the matter has come before the Court for hearing. 

12. The father had sought that the application be dealt with at short notice, but as that application was not granted by the registrar it first came before the Court earlier this week. Certainly, his case is that it is a demonstration of his commitment and concern for the children and is not sustainable on a longer term basis. 

13. It is not disputed that on 2 September 2018 the mother received a phone call telling her that her mother was in the emergency department at Suburb C Hospital. The mother was told that a mass had been found on the left side of her mother’s brain. There is a dispute between the parties as to whether the mother called the father from the workshop she was at and told him about her mother and asked if she could go to Sydney or whether she called him from the plane. I do not think anything particularly turns on this. There is no doubt that it would have been a very shocking and traumatic call and it is understandable that she would go to Sydney to be her mother, and the father does not take issue with that. 

14. The father acknowledges at [7] of his first affidavit that the maternal grandmother is terminally ill and receiving radiation treatment. The mother says that the maternal grandmother has been diagnosed with stage 4 brain cancer and has been given a life expectancy of between 12 and 18 months. This may need to be the subject of further evidence in due course if there is a dispute about the life expectancy. 

15. The mother stayed in Sydney for the next few weeks whilst her mother was in hospital and during that period the children were in the father’s care in Melbourne. The father and children flew to Sydney on 24 September 2018. They were due to return on 30 September 2018. There is a factual dispute between the parties as to whether the mother unilaterally cancelled the tickets on 26 September 2018 as the father claims or whether she cancelled the tickets with the father’s consent, as the mother claims, in order to stay for another week or two. 

16. The mother says that on 27 September 2018, the father told her that he was taking the children to visit his cousin in Sydney and that she tried to contact the father and his cousin unsuccessfully when he had not returned in the late afternoon and then later received a text from the father saying, “We’re home. We’re okay. Looking forward to you coming back when you’re ready”. The father’s affidavit is silent about that. The mother flew to Melbourne the next day. 

17. One of the disputes between the parties arising out of this is whether or not the mother has acted unilaterally first on 26 September 2018 or whether the father has acted unilaterally first the following day. The father had his lawyers write to the mother on 8 October 2018 stating that as the mother had cancelled [X]’s ticket without his consent, he was seeking her written confirmation that she would not take the children out of Victoria without his written consent and she would abide by those terms if it was agreed.

18. The letter records that the parties are attending counselling and it is not suggested that the relationship had ended by that stage, though certainly on both parties’ cases, the relationship had been having difficulties for some time and clearly this was a period of crisis for the whole family. The parties attended counselling on 11 October 2018. 

19. The father agreed for the mother and children to go to Sydney for a period. The father says in his affidavit that it was against his better judgment but he was trying to save his marriage at the time. He annexes email exchanges between the parties to his affidavit where the mother attaches the itinerary showing the return flights with the mother and children leaving on 16 October 2018 and returning on 22 October 2018. 

20. The father also raises his concerns with the mother in that email exchange about the state of the maternal grandparents’ home. After expressing those concerns he states that his first preference is that he would look after the children in Melbourne whilst the mother went to Sydney to look after her mother, but thanked her for the reassurance that her brother, sister and cousins and friends would be around to also assist.

1. The father says that on Monday, 22 October 2018 he sent the mother a text wishing her a safe flight. He says that before the weekend the mother had told him that [X] had been vomiting, had constipation and a sore tummy and she had taken her to the doctor on Friday. On Monday the mother told the father that [Y] had become ill over the weekend and was taking him to the doctor to see if he was well enough to fly. The father said that they agreed that he would be contacted during the appointment with the doctor and he would be able to attend by telephone. The father says that the mother did not call him and he called during the appointment but that the mother told him that the doctor did not want him on the conference call due to confidentiality reasons and hung up. 

2. The mother sent him a medical certificate stating that [Y] was too unwell to travel between 22 October 2018 and 28 October 2018 due to viral gastroenteritis and the risk of transmission of infection from vomiting or diarrhoea. The mother’s text sending that certificate said that the GP wanted to focus on [Y] during the appointment and was concerned about confidentiality issues.  The father says in his affidavit that as he is the biological father of the children he does not understand how there could be any confidentiality concerns and raises the concern that the medical certificate does not address the issue of the children remaining in the house whilst ill with the maternal grandmother while she is receiving radiotherapy. 

3. He says after several unsuccessful attempts, he spoke to the GP on 23 October 2018. He says that the GP told him that she relied on the mother’s statements about the children’s illness and could not confirm whether or not the children had stomach issues and that the mother had sought that the medical certificate refer to a longer period of time in case there were difficulties later in the week and that she would have to postpone the flight again. 

4. The father says that the mother either made up the children’s illnesses or exaggerated them in order to stay in Sydney. The mother denies this.  Both parties have issued subpoenas in the case, but neither party has subpoenaed the doctor’s notes at this stage. I have no independent evidence about this issue and cannot make any determination about it on an interim basis. 

5. The mother says that she went to Sydney with the children as agreed and that whilst in Sydney, she ended the relationship and she also made a report to the police and acknowledges that she has stayed in Sydney since then. The mother attended the police station and made a complaint which is annexed to the father’s affidavit.  The complaint is largely consistent with the mother’s evidence in her affidavit where she refers to the father sexually assaulting her on three occasions when the parties were in Melbourne between 28 September 2018 and 15 October 2018. 

6. The father vehemently denies that there were any assaults.  His case is that that action by the mother in making that complaint, which led to the police issuing an interim intervention order which also named the children, is a tactical one and he points to the timing where the provisional order issued by the Local Court is dated and time stamped 23 October 2018 at 1.36 am, and he refers to the fact that the day before the mother and children were due to return to Melbourne but, as I have outlined above, the mother says that the children were sick and unable to fly.

7. The father also believes that the mother had the children included in the complaint in order to prevent the children from returning from Sydney.  The father says that the mother has told him previously that she would create a situation where she could live in Sydney and start a business there. The mother denies ever making those threats and denies exaggerating or fabricating the illnesses, as I indicated previously.

8. The father’s case is also that he has had long term concerns about the mother’s mental health and capacity to care for the children. He says he has contacted numerous agencies and departments to seek assistance in the past as well as contacting the mother’s friends and family due to his concerns. He states that he was the primary carer of the children, although he was working full time and the mother was at home, and the mother’s evidence is that she returned to work one and a half days a week in June of this year. 

9. The father says because he was concerned about the mother’s ability to care for the children, he would get up early and do chores and that he would get the children dressed and feed them breakfast in the morning and would come home early and feed them dinner and take care of the night-time routines. He also says that he would arrange for others to check in on the mother.  He complains that he would return home from work and the mother would be asleep and the children were crying.  He also says that the mother would ask him to come home early and he refers to coming home and seeing ducted heating having been partially taken apart and the dishwasher pulled apart which he says the children caused whilst unsupervised. 

10. In the father’s further affidavit filed on 16 November 2018, together with the amended initiating application, he says that the mother’s behaviour was often volatile and unpredictable and says that the mother regularly verbally abused him in front of the children. He does not provide any particulars but says that the mother would fly into a rage and at other times ignore everyone around her, including the children. 

11. The mother denies the father’s allegations and says that she would wake between 6:00am and 7:00am in the morning around the same time as the children and that either she or the father would make breakfast for the children. She says that both children have sleeps during the day and that occasionally she would sleep at the same time as them, which was in accordance with advice received from maternal health nurses and others, and that particularly when she was breastfeeding, that she did for 12 months after the birth of each child, it was tiring as she had to get up several times during the night to feed them.  There is nothing uncommon about that.

12. The mother says that the incident that the father refers to where [X] was crying loudly, she was not asleep but was lying on the bed next to him and [X] was teething and had been crying a lot during the day.  She denied not supervising the children and said that [X] is an active toddler and he was fiddling with the heating duct and the dishwasher drawer shortly before the father came home and that she was supervising him at the time. 

13. The mother denies that the father was primarily responsible for the children’s wellbeing and points out him working full time. As I indicated earlier, the issue of who is the primary carer in the relationship is one of the issues that I cannot determine on an interim basis. 

14. I note that neither counsel referred to the affidavit filed by the father’s friend nor the psychologists’ affidavits. I make no criticism of that, as both counsel quite properly focused on the affidavits of the parties. There is little weight that I can put on those affidavits at this interim stage. Much of the affidavits contain reports of what the parents have said to those individuals, which is not unusual. What both psychologists’ affidavits show is that both parents have been proactive in seeking assistance when they have felt the need and that the things that they have told the psychologists are consistent with what they say in their affidavits.

15. The father makes several complaints about the state of the maternal grandparents’ home and alleges that there were several unsafe items in the home including medications being left out in easy reach of the children and the absence of safety locks on the cabinets. The mother denies this but she concedes that the house was not in a perfect state given the family had just received news about her mother’s illness.  She also says that the father and children have stayed at the maternal grandparents’ home on many occasions during the marriage and that the father did not raise safety concerns on those occasions. 

16. The father is concerned that the children will be hurt as he is concerned that there is little supervision at that home and that the mother will not make the children her priority, particularly given the maternal grandmother’s illness. 

17. The mother annexes to her affidavit a safety assessment from the New South Wales Department of Family and Community Services which she obtained under a freedom of information request.  She says that on 31 October 2018 two representatives from the NSW department attended the home and conducted a safety assessment. The workers state in the assessment that they saw the children and both appeared well without any obvious sign of injury. The mother told them that she was in the process of child proofing all the cupboards and they observed safety locks on the cupboards, and she said that the medication is stored in those cupboards. 

18. The workers further stated that the mother allowed them to inspect the bathrooms and also told them that the police had conducted a welfare check and had not held any concerns. They recorded that the mother was open to working with them and made the children available. They observed that the children appeared to be well cared for and appropriately dressed and they saw the mother feeding the children.  The mother told them that [X] is a fussy eater and has experienced constipation on and off since birth and that the mother told them that she regularly meets with childhood nurses.

19. The workers recorded that they did not see any obvious signs of hazards that had been identified in the risk of harm report made to them and they were satisfied about the sleeping arrangements for the children. The mother told them that she had been the victim of domestic and sexual violence. The mother described the children in positive terms and talked about what she enjoys doing with them.  The children were present throughout the visit and they observed the mother to be responsible, responsive and affectionate towards them and the children appeared to be at ease with her and sought her out for comfort.

20. The mother told the workers that she had not been diagnosed with a mental health illness and that she regularly sees her counsellor for assistance and agreed for the caseworkers to contact him to confirm that. The report indicates that the caseworkers left a message for him but would be following that up as they have not yet contacted him and also that they would follow up with police and the domestic violence liaison officer.

21. The workers stated that the current circumstances and the information they had did not suggest that the mother or her parents have previously ill-treated the children and there was no information to suggest that the children were in imminent danger because of homelessness or harming behaviours. It is certainly true that that case assessment has not been tested, but it is a piece of independent evidence and there is very little of that before me at this interim hearing which is not unusual in the early stages of proceedings.

22. The mother says that she is desperate to stay in Sydney near her family and friends and community supports. She says they lived in Sydney and moved to Melbourne when the father obtained employment with Employer. At that time she was pregnant with [Y] and [X] was about 17 months old and she says she was reluctant about moving to Melbourne away from family and friends. 

23. The father says that the mother has family and friends in Melbourne as well, whereas the mother says she has limited supports.  The mother also says that the father has fractious relationships with his family in Victoria, that his father lives in Town D and rarely sees the children, that he has one sister living in Western Australia and another sister living in Melbourne who has never met [Y]. One of the issues that no doubt would be raised at a final hearing is whether or not the father would be able to relocate to Sydney. 

24. The mother says in her affidavit that she has arranged two days of child care for the children from mid‑December 2018 and that she has been offered part-time paid employment with Employer commencing in 2019. The father points to these factors as supporting his case that this has been a planned and calculated move on the mother’s part to strengthen her case to stay in Sydney. 

25. The mother denies the father’s allegations that she has made decisions about the children on a whim without discussion with him and denies threatening to move to Sydney with the children. She says she explained to the father on 11 October 2018 when they attended counselling that he was placing her in an impossible position making her choose between her ill mother and being with the children. The mother says that she has accommodated most of the father’s requests to spend time and communicate with the children since the father filed the application and before the matter coming to court.

26. The father outlines in his second affidavit the visits that he has had with the children in October 2018 and November 2018, which are frequent, and he also Facetimes the children regularly. The father says that [X] always tells him how happy she is to see him and talks about their home in Melbourne, that she doesn’t want him to leave, that the children have a good time with him and that both children become upset at changeover. The mother also says that the children become upset at changeover, and those transitions are difficult for children of their age, but also the current circumstances of the family is highly unsettling for the children.

27. The mother says that [X] says things such as, “I want you to live together”, and, “Why can’t Daddy come with us?” and the mother believes that the children are missing being part of an intact family. What both parents are describing is perfectly natural and what one would expect from children of their ages and with their parents so recently separating. It is made all the more difficult by the parents being in different cities.

28. The legal principles applying to these cases were well known.  The Full Court in Goode & Goode [2006] FamCA 1346 has set out the legislative approach that should be followed in parenting cases and [82] of that decision sets out the factors that the Court should consider in interim parenting cases, and those are factors that have to be considered in parenting cases regardless of whether or not they are relocation cases. It is also well established that a relocation case is not a separate category of parenting case.

29. I also refer to the decision of Deiter & Deiter [2011] FamCAFC 82 where the Court observed that interim hearings are truncated proceedings. The Court has to be cautious about being drawn into contentious trial issues and the Court needs to look at less contentious matters such as agreed facts, care arrangements prior to separation and the current circumstances and the parties’ respective proposals.

30. In Morgan & Miles [2007] FamCA 1230 Boland J heard an appeal with respect to an interim relocation and set out guidelines. In that case and particularly at [79] to [81] and at [88] it was said that particularly with respect to relocation cases given the nature of the issues it is highly desirable that, except in cases of emergency, arrangement should not be determined at an abridged interim stage.

31. Parks & Farmer [2012] FamCAFC 12 is another decision of the Full Court dealing with an appeal from an interim relocation decision. That case involved a dispute as to whether or not the relocation was a unilateral one and the Court stated (which has been stated elsewhere in many authorities) that whilst the Court does not condone unilateral relocations, those actions are one of the factors that the Court needs to determine under Part VII of the Family Law Act 1975 (Cth) relevant to determining what is in the children’s best interests on an interim basis after a circumscribed hearing.

32. In that case the Full Court found that the then Federal Magistrate did not find that the father’s relocation in that case was unilateral, nor did she find that the relocation was justifiable or vindicated and I find myself in a similar position in this case given the current state of the evidence and the many factual disputes between the parties which cannot yet be tested.

33. The parties at the interim hearing seek that there be orders for interim equal shared parental responsibility. That does not prevent the parties from pursuing sole parental responsibility at a final hearing and I will make an order for the parties to have equal shared parental responsibility on an interim basis. That requires the Court to consider the provisions in section 65DAA as well as the section 60CC factors. Neither party suggests that the children do not have a meaningful relationship with the other parent, and at this interim stage that the children should spend significant time with the other parent.

34. The father raises issues of abuse and risk for the children in the mother’s care, and the mother raises issues of violence and in addition to the allegations of assault. She also alleges in her material that the father engaged in coercive and controlling behaviour during the relationship and says that his actions in talking to her family and friends without her knowledge about her mental health and parenting and having people check on her is an example of that. I cannot determine whether the father or the mother is correct or whether there is a combination of those issues at this stage.

35. The children are too young to express their views, but there is nothing to suggest that the children do not have close and loving relationships with both their parents. The father says he understands that the mother wants to spend time with the maternal grandmother given the circumstances but that their first priority must be to their children. The issues are not as black and white as the father suggests. 

36. The mother has made it clear during the interim hearing that if I order the children to return to Melbourne she will return as well and, as indicated, the father has offered her financial support to assist her to establish rental accommodation in Melbourne. The mother pointed out during the interim hearing that the father does not offer that the mother have sole occupation of the former matrimonial home, which is unencumbered, if she returns. 

37. If it were not for the fact that the maternal grandmother has recently received a diagnosis of a terminal illness, this decision would be a more straightforward one. The dispute between the parties needs to be seen in the context of a very difficult period for this family with much upheaval and emotional upset. It is clear on both their cases that when the mother and children first went to Sydney the parties were not separated. It was clear that the relationship was deteriorating and that by October 2018 their relationship was breaking down and it did break down during that month.

38. The father has acted very quickly in bringing these proceedings as soon as he realised that the mother wanted to stay in Sydney with the children and not return to Melbourne. No criticism could be made of him not taking that action at an earlier stage. 

39. Even if the Court were to find that this is a unilateral relocation, ordering a return is not an automatic matter and the Court must still consider the children’s best interests in the individual circumstances of the case.  One of the things that troubles me about ordering the return for the children and the mother to Melbourne at this stage is the emotional impact that that would have on the mother being away from her family and needing to find rental accommodation. Given the fact that the father raises concerns about the mother’s vulnerabilities and concerns about the children’s wellbeing in her care, the move requiring the mother to be in Melbourne away from her family at this stage would only heighten those concerns. 

1. It would also be impossible for the children not to be aware of the stress on the mother and concern for her own mother’s welfare, and I have no doubt that the children are experiencing upset and a great period of upheaval and uncertainty in their lives and are confused by not having both parents around as they are used to.

2. What is fortunate in this case is that the parties’ financial circumstances are such that there has been able to be frequent time with both parents and the children despite living in different cities. There is no financial evidence before the Court and the parties have not commenced property proceedings. Given the urgent nature of the application that was made, this is not surprising, but it is not disputed that the father has access to significant funds and has proposed that the parties obtain a private family report and have arranged interviews in February.

3. If the parties commence property proceedings and these costs can be taken into account then the costs of spending time with the children would also be a relevant factor to take account in any child support assessment. The children are not yet in school and will not be in school next year. They have attended child care in Melbourne and may be able to continue to do so, acknowledging that if they attend child care in Sydney they would be going to a new one.

4. I also acknowledge that the situation is not ideal and that over the next few months this would involve more changes and travel for the children than is ideal, particularly given their ages, the optimum arrangement would have them seeing both parents on a frequent basis.  So whilst at this stage I am not going to order that the children return to Melbourne, I do think that the children need to spend substantial periods of time with the father and that there should be time in Melbourne as well as Sydney. 

5. The mother’s proposal was referring to the father having two days a week in Sydney which I think is somewhat difficult, particularly given that the father lives and works in Melbourne. What would be more realistic would be that there be four day blocks which may be as frequent as every fortnight and should alternate between Sydney and Melbourne and the mother should also share in the travel of taking the children to Melbourne. There should also be two blocks of seven day periods with the father in Melbourne during the summer holidays.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 17 January 2019