MOSEL & FROST

[2015] FamCA 484

FAMILY COURT OF AUSTRALIA

MOSEL & FROST [2015] FamCA 484

FAMILY LAW – CHILDREN – case application dismissed – international relocation – expired visa – best interests – freedom of movement

Family Law Act 1975 (Cth) s60CA s60CC s60B s61DA s65DAA s65DAC

Banks & Banks [2015] FamCA36
Mauldera & Orbel (2014) FLC 93-602

Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Malcolm & Munro (2011) FLC 93-460
Morgan & Miles  (2007) FLC 93-343
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Mosel

RESPONDENT: Ms Frost

INDEPENDENT CHILDREN’S LAWYER: Ms Murray

FILE NUMBER: TVC 149 of 2014

DATE DELIVERED: 18 June 2015

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 17 June 2015

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT

 CHILDREN'S LAWYER :

Ms Mayes

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: G A Murray

Orders

IT IS ORDERED THAT:

1. The father’s Application in a Case filed 30 March 2015 seeking relocation with the children is dismissed.

2. Within 24 hours of these orders being pronounced, the father is required to sign all such documents and give all such consents as may be necessary for the children B, born … 2009 and C, born … 2011 to be added to the mother’s visa application as migrating dependants, and in default of him doing so, the Registrar of the Family Court at Townsville is authorised to sign all such documents and give all such consents in place of the father.

AND IT IS FURTHER ORDERED BY CONSENT THAT:

1. Order 28 of the Orders of Justice Tree Made 10 September 2014 (as varied by Order 3 of Orders made 8 December 2014, and which deals with the payment of spouse maintenance to the mother) is discharged with effect from 18 December 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mosel & Frost has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER: TVC 149/2014

Mr Mosel

Applicant

And

Ms Frost

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings concern the parties’ two children, being B, born in 2009 (and therefore presently 6 years of age) and C, born in 2011 (and therefore presently 4 years of age).  By his Application in a Case filed 30 March 2015, Mr Mosel (“the father”) seeks an order permitting him to relocate with the children to the Country D or alternatively to Country E.  By her Response to an Application in a Case filed 25 May 2015, Ms Frost (“the mother”) does not oppose the father relocating, but opposes the children relocating to either country.  She further seeks an order requiring the father to consent to the children being added to a visa application which she has submitted in relation to herself (which visa presently only names the children as non-migrating dependents).

THE PROBLEM

1. Neither the father nor the mother are citizens or permanent residents of Australia.  The mother is a citizen of the Country D.  The father is a citizen of Country E, albeit seemingly with a right of residence in the Country D as well.  Pre-separation the parties came to Australia with the children in July 2012.  They came pursuant to what is known as a 457 visa which issued to the father permitting him to work in Australia.  On 6 January 2014 the parties separated.  The father wished to remain living in Australia with the children.  There was an issue at that time as to whether the mother would be permitted to stay in Australia post-separation pursuant to the father’s 457 visa; ultimately that was overcome by the mother obtaining a student visa.

2. Since separation the parties have been able to agree upon a regime of parenting orders under which they equally share parental responsibility for the children, who live with the mother, but spend substantial and significant time with the father.  The last consent orders made 10 September 2014 established that time at 5 days (including overnights) per fortnight.

3. In December 2014 the mother formed a new relationship with an Australian citizen.  He is sponsoring her for a visa which will permit her to stay permanently in Australia.

4. In March 2015 the father’s employment was terminated, and he has not been able to obtain an alternative employment.  The terms of the 457 visa apparently will see it expire 90 days after the father last ceased full-time employment in Australia.  The children are named on the father’s 457 visa and are only in Australia pursuant to that.  I was told without contradiction that the father’s visa will expire on 12 July 2015 or thereabouts.

5. The father now wishes to leave Australia, not only because of the imminent expiry of his visa, but also because he says he has better employment prospects overseas.  The mother wishes to stay in Australia given that she has formed a new relationship and otherwise adapted to life in Australia.  She has applied for a visa permitting her to stay in Australia, which again I was told without contradiction, may take 15 months to process.  In the interim she will qualify for some species of bridging visa.  I was told without contradiction by the mother that at any time she can apply to vary her visa application to name the children as migrating dependents, at which time the children would also become entitled to a bridging visa permitting them to stay in Australia until the mother’s application is determined.  However to do so she needs the father’s permission, and perhaps signature.  Therefore in a nutshell:

   ·The father will likely be required to leave Australia on 12 July 2015;

   ·Unless the children also relocate with the father  to whichever country he travels to, his time with the children is likely to be substantially reduced and hence impact upon the meaningfulness of the relationship he has with them;

   ·The mother is entitled to stay in Australia and wishes to do so, however at present the children will be required to leave Australia on about 12 July 2015;

   ·Unless the father consents to the children being added to her application for a visa, the children will need to leave Australia on 12 July 2015.

6. The mother says she will not relocate to either the Country D or Country E, although I suspect strongly that in the event that the children were to leave Australia, she will travel to whatever country they went to.

THE FATHER’S APPLICATION

1. The father is self-represented.  He seeks an order permitting interim international relocation.  His application did not detail the parenting orders which he sought in the event that relocation were permitted, but in the course of argument he identified that he proposed that the current interim consent orders would substantially remain in place.  He believes that it would be in the best interests of the children for the mother to also relocate so that the children have both parents in their life.  His first preference is to relocate with the children to the Country D; in the event that the mother did not also relocate, he proposes to relocate with the children to Country E.

2. Therefore on one view in reality the father’s application is to force – practically – the mother to relocate to the Country D with him.  In that event he did not contemplate that the Australian litigation would continue, but rather that the parties would litigate afresh in the Country D.  Viewed in that sense, the father seeks to maintain a meaningful relationship with the children at the expense of the mother’s practical freedom to determine where she wishes to live.  His application is therefore, at least so viewed, a coercive one.

3. On another view the father’s application is a solemn farce – he seeks to be permitted to do that which will likely occur by operation of the expiry of the father’s visa in July anyway.

4. The mother proposes that the children should continue to live with her in Australia.  She says that the father has not fully explored all of the visa opportunities available to him to stay in Australia.  The father denies that.  If the father ultimately is required to leave Australia on 12 July 2015, then she says that nonetheless the litigation can continue.  Viewed in one sense, the mother’s application puts her desire to remain living in Australia ahead of the children continuing to experience their relationship with the father to extent that they presently do.  That said, she acknowledges that ultimately she may be required to relocate from Australia, but says that that move, if required, should await the final determination of these proceedings and not be effected by way of interim determination.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to section 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s.61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to section 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s.60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s.60CC. Consideration does not mean discussion: see Banks & Banks [2015] FamCA 36 at [49].

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Relocation

1. The application of these provisions in the context of relocation cases has been discussed by many authorities.  In the relatively recent decision of Malcolm & Munro (2011) FLC 93-460 the Full Court approved the earlier decision of Boland J in Morgan & Miles (2007) FLC 93-343, and particularly at paras.79 to 81, where her Honour said as follows:

   79. In considering whether the child should live with the parent who proposes to relocate a court:

   ·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

   ·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

   ·Be guided in its determination by the objects and principles underpinning the legislation.  This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

   ·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

   ·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   ·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

   ·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals.   Depending on factors such as  the age of the child, the wishes of the child, the relationship between the child and a parent,  the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

   -    that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   -    that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

   -    that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

   -    the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

   ·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance. 

   80. It follows from my exposition of the legislation, that earlier core principles:

   -    that the child’s best interests remain the paramount but not sole consideration;

   -    that a parent wishing to move does not need to demonstrate “compelling” reasons;

   -    that a judicial officer must consider all proposals, and may himself or herself  be required to formulate proposals in the child’s best interests; and

   -    the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,

   remain valid.

   81. What the legislation now requires is:

   - consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;

   -     if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility  applies the consequences of an order for equal shared parental responsibility.

   but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.

Interim parenting proceedings

1. In Goode & Goode (2006) FLC 93-286 at 80,903 the Full Court set out the way in which an interim parenting application should be determined as follows:

   81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   82. In an interim case that would involve the following:

   (a)identifying the competing proposals of the parties;

   (b)      identifying the issues in dispute in the interim hearing;

   (c)      identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

THE COMPETING PROPOSALS

1. I have already set out at the commencement of these reasons the parties’ competing proposals.  The father wishes to relocate with the children to the Country D or Country E; the mother wishes to remain living in Australia with the children. 

THE ISSUES IN DISPUTE IN THE INTERIM HEARING

1. The primary question is whether it would be in the children’s best interests to continue to reside in Australia pending a final hearing, or whether they should reside in either the Country D or Country E, noting that in that event, it is likely that the effect of any interim orders will, on a practical level, be final.

THE AGREED OR UNCONTESTED RELEVANT FACTS

1. I have already set out at the commencement of these reasons what I understand to be uncontroversial matters.  The most important uncontested facts are:

   ·The parties came to Australia from the Country D in 2012;

   ·The parties separated whilst in Australia, at which time the father wished to remain living in Australia with the children;

   ·Since separation, the parties have, on the whole, been able to agree regimes of parenting orders which saw the children primarily living with the mother but spending substantial and significant time with the father;

   ·The mother wishes to remain living in Australia with the children and although not eligible for social security payments or presently in employment, is financially supported by her new partner;

   ·The father has been made redundant and is not presently in employment;

   ·There is a live prospect that the father will be required to leave Australia on 12 July 2015 pursuant to the terms of his visa;

   ·At present the children are in Australia pursuant to being named on the father’s visa;

   ·If named on the mother’s application for a visa, the children will be able to remain living in Australia;

   ·The father does not presently have any firm arrangements for accommodation, employment or the like in the Country D or Country E.

PARENTAL RESPONSIBILITY

1. Pursuant to the consent orders made 10 September 2014, both parties agree that each should have equal shared parental responsibility for both children.  Neither party seeks to disturb that in these proceedings.

EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME

1. Section 65DAA obliges me to consider whether it would be in the children’s best interests and reasonably practicable for them to spend equal time, or substantial and significant time, with each parent.

2. In this respect the present consent interim orders provide for the children to live with the mother and spend substantial and significant time with the father, to the extent of five days and nights per fortnight.  Neither parent seeks an order for equal time; the extent that the father seeks to disturb the present arrangements at all, it is only in the event that the mother does not relocate to the Country D, in which case he seeks to relocate to Country E.  Save for that, the father proposes that the children spend substantial and significant time with him in the Country D.

3. The difficulty is that such can only be enjoyed by him if both parties remain living either in Australia or relocate to the same country.  On a practical level therefore, the amount of time which the father will spend with the children must turn on whether the children remain living in Australia.  If the children do so remain living in Australia, and if the father is obliged to leave Australia, then it will not be reasonably practicable for the father to continue to spend substantial and significant time with the children, notwithstanding that doing so might otherwise be in the children’s best interests.

RELEVANT S 60CC FACTORS

1. There is no reason to think that the children would not benefit from having a meaningful relationship with both of their parents.

2. This is not a case which engages the need to protect the children from harm from either parent.

3. The children are too young to express any views which would be worthy of weight.

4. It is not contended that the children have relationships with persons other than their parents which would be relevant to determining the question of interim relocation.

5. Both parents are child focussed and there is no criticism to be made of either of them for a lack of interest in making decisions about the children, spending time with them or communicating with them.

6. Although the father has not in recent times contributed to the costs of maintaining the children, I note that he has been made redundant in recent months and will likely need to relocate internationally in the near future.

7. The absence of either parent from the children’s lives in the short term is unlikely to effect the children adversely.  On a long term basis however, the situation may be different.

8. Whilst the parents remain living in the same city in Australia, there is no practical difficulty or expense in the children spending time with and communicating with both parents.  If the father relocates to the Country D or Country E and the mother does not move as well, then there will be practical difficulties in the father spending time with and communicating with the children.

9. There is no suggestion that either party does not have the capacity to provide for the children’s needs.

10. There is no relevant family violence.

11. Whilst it would be preferable to make an order that would be least likely to lead to further proceedings, that is not, as a matter of reality, possible in this case at this time.

CHILDREN’S RESIDENCE PENDING TRIAL

1. Weighing these factors in the balance, I am persuaded that the children’s best interests are presently better served by them remaining in Australia pending trial.  Particularly I am influenced in so concluding because:

   ·The father has no concrete proposal in relation to housing, employment or the like for himself in the Country D;

   ·There is no evidence as to how the mother would house, or otherwise afford to care for the children in the Country D in the event that she were to relocate.  If she did not relocate, the children, who have always been primarily cared for by the mother, would lose that care;

   ·There is no evidence as to how the father would house or otherwise care for the children in Country D in the event that the mother did not chose to relocate there;

   ·There remains some (albeit limited) prospect that the father will be able to obtain a visa to continue living in Australia.  In so saying, I do not overlook the fact that he would not be eligible for social security benefits, and may therefore need to either draw upon his present savings or seek alternative employment in Australia;

   ·To order otherwise would see the children up-rooted from their present home and taken to either the Country D or Country E.  On a practical level, that may well effect a final outcome.  In the event that the litigation in fact continued, there is a prospect that they would then at trial be ordered to return to Australia.

ORDERS

1. It follows then that the father’s application seeking permission to relocate with the children on an interim basis should be dismissed.  To facilitate the children remaining living in Australia the father should be required to sign all such documents and give all such consents as may be necessary for the children to be added to the mother’s visa application as migrating dependents. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 18 June 2015.

Associate: 

Date:  18 June 2015