FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Morvand & Sleeman [2024] FedCFamC1F 894
File number(s): SYC 7028 of 2024 Judgment of: CURRAN J Date of judgment: 19 December 2024 Catchwords: FAMILY LAW – CHILDREN – best interests – international relocation – where the mother seeks to relocate to Country B with the children – where the father opposes the relocation – where the mother is the primary carer for the children – where issues of safety due to the father’s alcohol and drug use – where one child has special needs – where the mother lacks practical, emotional and financial supports in Australia – where the extended maternal and paternal family reside in Country B – where the father submitted the children cannot have a meaningful relationship with him should relocation be permitted – where partway through the trial the father consents to the relocation and a period of supervision – where only issue becomes the period of time that the father’s time will be supervised– orders made permitting the relocation with supervision by the paternal grandmother for a period of time given issues of the safety of the children Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth), pt VII, ss 60B, 60CA, 60CC, 60CG, 64B
Convention on the Rights of the Child
Cases cited: Eastley & Eastley (2022) FLC 94-094; [2022] FedCFamC1A 101
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Division: Division 1 First Instance Number of paragraphs: 88 Date of last submissions: 18 December 2024 Date of hearing: 16 & 18 December 2024 Place: Sydney Counsel for the Applicant: Mr Auld Solicitor for the Applicant: Abbott Delaney Lawyers Counsel for the Respondent: Dr Barnett SC Solicitor for the Respondent: Walter & Elliott Family Lawyers ORDERS
SYC 7028 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MORVAND
Applicant
AND: MS SLEEMAN
Respondent
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
19 DECEMBER 2024
BY CONSENT THE COURT ORDERS THAT:
Prior orders
1.That all prior orders be discharged.
Decision making responsibility
2.That other than is set out in these orders with respect to the children's residence and habitual residence the Mother have sole parental responsibility, and sole responsibility for the making of decisions relating to major long-term issues, for the children X born in 2022 and Y born in 2022.
3.That the Mother be at liberty to relocate the children's residence and habitual residence to Country B no sooner than 6 January 2025 and upon the children relocating to Country B the Mother be prohibited from changing the children's residence and habitual residence outside of Country B without the Father's written consent or Court order.
4.That the children shall live with the Mother, and spend time with the Father as agreed between the parties in writing and failing agreement as follows:
Prior to the relocation
5.That the children shall spend time with the Father:
5.1.With the Father collecting the children from day care each Tuesday and…
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- Morvand & Sleeman [2024] FedCFamC1F 894
- Case
- [2024] FedCFamC1F 894
- Decision Date
CaseChat Overview and Summary
The court carefully weighed the evidence and submissions from both parties, considering the statutory factors outlined in section 60CC(2) of the Family Law Act 1975. These factors included the safety of the children, their developmental needs, and the capacity of each parent to meet these needs. The court also examined the Specific Issues Report prepared by Ms H, a child expert, which highlighted the close and loving relationships the children shared with both parents. Ultimately, the court concluded that while Mr Morvand did not pose an unacceptable risk of sexual harm to the children, the long-term nature of his substance abuse and the young age of the children warranted a cautious approach. The court determined that a 15-month period of supervision, provided Mr Morvand complied with drug and alcohol testing, was appropriate. This period would allow for the gradual increase in unsupervised time as the children grew older and more stable.
In its decision, the court ordered that Ms Sleeman could relocate to Country B with the children, with Mr Morvand's visitation subject to supervision by his mother for the first 15 months. The court also outlined detailed arrangements for the children's time with Mr Morvand, both before and after the relocation, and set forth conditions for drug and alcohol testing, communication between the parents, and other logistical details to ensure the children's welfare. The court emphasised the importance of maintaining a relationship between the children and their extended family on both sides, and it mandated that both parents refrain from denigrating each other in front of the children.
In summary, the court's decision reflects a balanced approach, prioritising the safety and best interests of the children while striving to maintain their relationship with both parents. The orders made are designed to ensure a stable and supportive environment for the children as they transition to living in Country B with their mother.
Orders
Orders of the court
SYC 7028 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR MORVAND
Applicant
AND:
MS SLEEMAN
Respondent
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
19 DECEMBER 2024
BY CONSENT THE COURT ORDERS THAT:
Prior orders
1. That all prior orders be discharged.
Decision making responsibility
2. That other than is set out in these orders with respect to the children's residence and habitual residence the Mother have sole parental responsibility, and sole responsibility for the making of decisions relating to major long-term issues, for the children X born in 2022 and Y born in 2022.
3. That the Mother be at liberty to relocate the children's residence and habitual residence to Country B no sooner than 6 January 2025 and upon the children relocating to Country B the Mother be prohibited from changing the children's residence and habitual residence outside of Country B without the Father's written consent or Court order.
4. That the children shall live with the Mother, and spend time with the Father as agreed between the parties in writing and failing agreement as follows:
Prior to the relocation
5. That the children shall spend time with the Father:
5.1. With the Father collecting the children from day care each Tuesday and Thursday at 3:00pm and returning the children to the Mother at McDonalds in Suburb C at 6:30pm.
5.2. Each Saturday and Sunday from 9am to 5pm with the Father collecting from and returning the children to McDonalds, in Suburb C.
When the children live in Country B and the father lives in Australia
6. The children shall spend time with the Father as follows:
6.1. In Australia during the following months:
6.1.1. In June/July 2025 for a period of three weeks on dates as agreed between the parties and failing agreement between 7 July and 28 July;
6.1.2. In June/July 2026 for a period of two weeks during the children's Country B summer holiday period in writing from 1 June and 31 August, (and failing agreement from 14 July to 28 July) and each alternate year thereafter;
6.1.3. During December 2026/ January 2027 for a period of two weeks (and failing agreement from 20 December and 3 January), and each alternate year thereafter;
6.1.4. In June/July 2027 for a period of four weeks during the children's Country B summer holiday period in writing from 1 June and 31 August, (and failing agreement from 1 July to 28 July) and each alternate year thereafter.
6.2. That the children shall spend time with the Father as set out in Order 6.1 with the following conditions:
6.2.1. For orders 6.1.1 such time will be from 9:00am to 5:00pm on no fewer than 12 occasions over the three week period;
6.2.2. The time set out in Orders 6.1.2, 6.1.3 and 6.1.4 shall have gradual increase in time being that:
(a) commencing in June/July 2026 with one overnight at a time only and thereafter the number of consecutive overnights shall increase by one night per block period;
(b) The children shall return to the care of the Mother after each block overnight period for no less than 24 hours;
(c) The children shall spend time with the Father for no less than half of the time the children are in Australia.
(d) Upon the children turning 10 years of age the block period of time shall be fourteen nights.
6.2.3. The time shall occur in Australia;
6.2.4. The Father shall provide no less than eight (8) weeks' notice in writing of the airline and flight details and shall provide the flight tickets;
6.2.5. The Father shall pay for the children's return Economy class airfares and shall pay for one return economy airfare per calendar year for the Mother.
6.2.6. The Father is restrained from removing the children from Australia during his time with the children.
6.2.7. The time the children spend with the Father is subject to the requirements of supervision as set out below.
In Country B
7. The Father shall spend time with the Children whilst visiting Country B for a period of up to four weeks at a time on the following conditions:
7.1. Prior to the children turning four from 9:00am to 5:00pm on no fewer than 14 occasions over a four week period;
7.2. After the children have turned four there shall be a gradual increase in time being that:
(a) commencing in June/July 2026 with one overnight only and thereafter the number of consecutive overnights shall increase by one night per block period;
(b) The children shall return to the care of the Mother after each block overnight period for no less than 24 hours;
(c) The children shall spend time with the Father for no less than half of the time the Father is in Country B.
(d) Upon the children turning 10 years of age the block period of time shall be fourteen nights.
7.3. The time shall occur in Country B, with the Father travelling to, and staying in Country B, at his cost;
7.4. The Father shall provide no less than four (4) weeks' notice in writing of his proposed dates of travel;
7.5. The time shall occur no more frequently than one four week period each six months.
7.6. The children shall miss no more than 10 days of school in any school year to spend time with the Father.
7.7. The Father shall be restrained from removing the children from Country B during his time with the children.
7.8. The time the children spend with the Father is subject to the requirements of supervision as set out below.
If both parties live in Country B or the mother moves to Australia
8. That the children shall spend time with the Father each alternate Saturday and Sunday from 9:00am to 5:00pm until they turn four years of age.
9. Upon the children turning four years of age during term time:
9.1. Thereafter, each alternate weekend from 8.30am on Saturday to 5:30 pm on Sunday for a period of 4 months;
9.2. Thereafter, each alternate weekend from 5:30 pm on Friday to 5:30 pm on Sunday for a period of 4 months;
9.3. Thereafter, each alternate weekend from 5:30 pm on Friday to before school on Monday.
10. Upon the children turning six years of age during school holiday time:
10.1. commencing in June/July/August 2027 with six blocks of three nights.
10.2. In December 2027/January 2028 two blocks of four nights.
10.3. In June/July/August 2028 with four blocks of five nights.
10.4. In December 2028/January 2029 one block of six nights.
10.5. In June/July/August 2028 with three blocks of seven nights.
10.6. In December 2028/January 2029 and thereafter one block of seven nights.
10.7. In June/July/August 2029 and thereafter for three blocks of seven nights.
10.8. Upon the children turning 10 years of age the block period of time during June/July and August shall be fourteen nights.
11. That changeover shall take place at the McDonalds closest to the Mother's residence from time to time.
12. The Father's time with the children shall at all times be supervised by an agreed upon supervisor including the paternal grandmother, or a supervisor from D Contact Centre, E Contact Centre or any other professional supervision service as agreed between the parties in writing from time to time, and failing agreement, as nominated by the Mother, and in relation to the same:
12.1. The Father shall be solely responsible for the costs associated with supervised time; and
12.2. Each of the parties shall do acts and things required of them to comply with the guidelines of the supervisor.
12.3. The Paternal Grandmother shall provide an undertaking regarding her role as a supervisor.
13. That the requirement that the Father's time be supervised be suspended upon the Father demonstrating the following:
13.1. The Father providing two hair follicle tests that comply with Orders 15 and 16;
THE COURT FURTHER ORDERS THAT:
13.2. The Father providing three further consecutive CDT tests with a result less than 1.8, with such tests undertaken in compliance with Order 17.
BY CONSENT THE COURT ORDERS THAT:
14. In the event the Father produces a hair follicle test that indicates the use of an illicit substance or a CDT test which indicate a result higher than 1.8 or provides a test that does not comply with Orders 15, 16 or 17, then the supervision as set out in Order 12 will resume until the Father has again complied with the requirements set out in Order 13.
Drug and alcohol testing
15. For a period of 15 months from these Orders, the Father shall submit to hair follicle drug analysis on a three monthly basis until March 2026 (therefore with a further 5 tests to be undertaken):
15.1. Such test will be a chain of custody test and be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory;
15.2. The test shall test for the presence of drugs of abuse, including illicit drugs, amphetamines, opiates/opioids, phencyclidine, and THC and each of their analytes;
15.3. The cost of the testing shall be met solely by the Father;
15.4. The Father shall provide the Mother with written confirmation that he has submitted to testing forthwith upon doing so, with such written confirmation to include the details of the service provider utilised; and
15.5. The Father shall authorise any service provider to release any information and report about such testing directly to the Mother and to the extent that it is necessary these orders shall stand as authority for that information and report to be released to the Mother.
16. For a period of 15 months from these orders, the Father is restrained from:
16.1. Cutting his head hair to a length shorter than 4 centimetres or otherwise chemically treating or bleaching his hair; and/or
16.2. Using any chemicals or treatments on his hair other than commercially available shampoo and/or conditioner.
17. The Father shall submit to CDT testing at the written request of an Independent Lawyer, and in relation to the same:
17.1. The parties shall appoint Ms F, G Lawyers, as the Independent Lawyer;
17.2. The parties shall provide these orders to the Independent Lawyer;
17.3. The parties shall do all things and sign all documents so that the Independent Lawyer shall make request of the CDT test in writing;
THE COURT FURTHER ORDERS THAT:
17.4. Each request shall occur each three calendar months for the next fifteen months from the date of these Orders;
BY CONSENT THE COURT ORDERS THAT:
17.5. The Father shall submit to such testing within 72 hours of any request being made;
17.6. The cost of the testing shall be met solely by the Father;
17.7. The Father shall provide the Mother with written confirmation that he has submitted to testing forthwith upon doing so, with such written confirmation to include the details of the service provider utilised; and
17.8. The Father shall authorise any service provider to release any information and report about such testing directly to the Mother and to the extent that it is necessary these orders shall stand as authority for that information and report to be released to the Mother.
Contact details and communication
18. That the Mother and Father shall inform each other in writing within 7 days of any change in their mobile telephone numbers, email address and/or home telephone numbers.
19. That the Mother and Father be permitted to liaise with the children's school, sporting bodies and other extra-curricular activity providers to obtain any necessary information about the children's progress, with the parties to do all acts and things and sign all documents necessary to facilitate this Order.
20. That the Mother shall:
20.1. Send the children's report cards to the Father each year and keep the Father informed of the children's health and progress at school, and the children's residential address, mobile phone number and email address at all times.
20.2. Ensure that the Father's contact details are provided to any school the children are enrolled in, and that the Father's name is listed as the next of kin in any form concerning the children's education, health, future care, welfare or development.
21. The parties shall do all things and sign all documents necessary for these Orders to be registered and enforceable in Country B.
Telephone
22. That the Mother shall facilitate not less than three facetime calls per week at a time that is mutually convenient and failing agreement on Tuesday, Thursday mornings and Sunday morning (so long as the children are not spending time with the paternal grandparents or either of them that day)
Medical, educational and extra-curricular
23. That each of the Mother and Father shall:
23.1. Notify the other of any serious injury or hospitalisation in relation to the children or either of them as soon as possible after the emergency occurred and provide full particulars of any medical practitioner, health service provider or institution attended by the children and provide any authority and direction necessary to enable the other parent to obtain all necessary information concerning the children or either of them.
23.2. Provide full particulars of any medical practitioner, health service provider or institution attended by the children to the other, as well as any necessary authority or direction to enable the other parent to obtain information concerning the children from such medical practitioner, health service provider or institution.
Airport Watch List
24. That X born in 2022 and Y born in 2022 be forthwith removed from the Australian Federal Police Airport Watchlist to enable them to travel outside of the Commonwealth of Australia.
Overseas Travel
25. That the children be entitled to travel overseas with the Mother so long as she:
25.1. Provides the Father with a copy of a return ticket for the children's travel no less than fourteen (14) days prior to the proposed travel;
25.2. Provide the Father with an itinerary of the children's travel no less than fourteen (14) days prior to the proposed travel;
25.3. Provide the Father with telephone contact details upon which the children can be contacted during the overseas travel; and
25.4. Ensure that the children are covered by a travel insurance policy at all times they are travelling overseas, with a copy of such policy to be provided to the Father not less than fourteen (14) days prior to the departure date of such overseas travel.
Passports and visas
26. Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the relevant Minister may renew passports for the children, X born in 2022 and Y born in 2022 (collectively “the children”) upon the application of the Mother of the child without further consultation with the Father, the Mother having sole parental responsibility pursuant to an order of this Court to make such applications as are necessary.
27. That each of the Mother and the Father shall do all acts and things and sign all documents as may be necessary so that the children have a valid Australian and Country B passport and so that the Mother can obtain any visa and/or requisite travel document as may be required for the purpose of the travel to and from the destination country.
28. That the Father shall sign, within seven days of receipt, any form provided by the Mother to facilitate Order 27 and to confirm the children as Country B Citizens.
29. That the children's passports be held by the Mother.
Non-Denigration
30. Each of the parties shall be restrained by injunction from denigrating the other party or any member of their family to or in the presence or hearing of the children and to use his or her best endeavours to ensure that no one else does so in the presence or hearing of the children.
31. That the Respondent Mother facilitate time between the children and the paternal grandmother as agreed, and failing agreement :
31.1. every second Sunday and every fourth Saturday from 10am to 4pm,
31.2. upon the children turning four years of age once a month from Saturday 10am until Sunday at 4pm and once a month Sunday from 10am to 4pm with such time is suspended if:
(a) The Applicant Father relocates permanently to Country B;
(b) The children are travelling to Australia, pursuant to these Orders;
(c) During the time the Applicant Father has travelled to Country B, pursuant to these Orders to spend time with the children;
(d) The Respondent Mother is travelling with the children.
32. That the Father provide the Mother any documentation provided by the Administrative Review Tribunal or from the Department of Home Affairs within 7 days of receipt that demonstrates any applications, decisions or changes to his visa status in Australia.
33. In the event the Father and the children are in the same location on 25 December than the children shall spend time with the Father for a period of no less than four hours, with such time to occur in the morning in even years and in the afternoon in odd years.
34. That the Mother is restrained from revoking the children's Australian citizenship
Notation
A. Whilst the Father is working in Australia he intends to continue to pay the Mother child support of $2,400 per calendar month.
THE COURT FURTHER NOTES THAT:
B. Orders 13.2 and 17.4 were not made by consent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Section 60CC(2) identifies the matters that the Court is to take into account in determining what is in the best interests of a child, those being:(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:(i) the child; and (ii)each person who has care of the child (whether or not a person has parental responsibility for the child);(b)any views expressed by the child;(c)the developmental, psychological, emotional and cultural needs of the child;(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;(f)anything else that is relevant to the particular circumstances of the child. Assessment of safety considerations The Act requires consideration of arrangements which promote the safety of children as one of the identified factors for consideration under s 60CC(2). Per Isles & Nelissen (2022) FLC 94-092, in assessing risk the Full Court enumerated the necessity to consider all of the circumstances, including historical conduct, in determining whether or not there is sufficient evidence to make a finding of fact on the balance of probabilities in relation to the allegations made, in order to determine whether there is a possibility of harm arising in the future. In Eastley & Eastley (2022) FLC 94-094, the Full Court observed the need for a trial judge to consider the cumulative effect of the whole of the evidence in determining an assessment of risk, rather than merely dealing with each individual allegation in an isolated fashion. The Court must, pursuant to s 60CC(2A), consider any history of family violence, abuse, or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family. Furthermore, in accordance with s 60CG the Court must consider the risk of family violence and to the extent it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. Finally, consideration must be made as to whether any identified risks can be ameliorated. Specific Issues Report The Specific Issues Report (“the Report”) prepared by Ms H provided her opinion as to the children’s development, their relationship with each parent, the impact upon the children and upon their relationship with each parent in relation to the orders sought and she considered the issues of risk raised by the mother. The mother was observed as the primary attachment figure for the children, while the father was observed to be a secondary attachment figure due to the weekend time he had spent with them. The Court Child Expert opined at [40] that “the children appear to share close and loving relationships with both parents.”