Mullan and Casey
[2009] FMCAfam 508
•22 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MULLAN & CASEY | [2009] FMCAfam 508 |
| FAMILY LAW – Parenting – Mother relocating from [L] to Rockhampton with child aged nine- father seeking child’s return to [L] pending a final hearing – weight to be given to the fact that the child has lived primarily with his mother since a baby – weight to be given to the mother’s claim that she was compelled to relocate to provide support for her mother and that she will not return to [L]. |
| Family Law Act 1975, ss.60CC, 65DAA |
| C & S (1998) FamCA 66 Morgan & Miles (2007) FamCA 1230 |
| Applicant: | MR MULLAN |
| Respondent: | MS CASEY |
| File Number: | NCC 907 of 2009 |
| Judgment of: | Terry FM |
| Hearing dates: | 13, 15 & 21 May 2009 |
| Date of Last Submission: | 21 May 2009 |
| Delivered at: | Darwin |
| Delivered on: | 22 May 2009 |
REPRESENTATION
| Solicitor Advocate for the Applicant | Mr Byrnes |
| Solicitors for the Applicant | Byrnes & Cox Lawyers |
| Counsel for the Respondent: | Mr Duane |
| Solicitors for the Respondent: | Higgins & Dix Lawyers |
ORDERS
UNTIL FURTHER ORDER
That the parents have equal shared parental responsibility for [X] born in 2000;
That the mother return the child to [L] at her expense within seven (7) days.
That if the mother also returns to live in [L] then from the date of the mother’s return:-
(a)the child live with the mother;
(b)the child spend time with the father:-
(i)each alternate weekend commencing on the first weekend after his return from 5.00pm on Friday until 5.00pm on Sunday;
(ii)from 9.00am to 5.00pm on Father’s Day;
(iii)for half of each school holiday period as agreed between the parents and failing agreement for the second half of each school holiday period in 2009;
(iv)at such additional or alternate times as may be agreed between the parties.
That until the mother returns to live in [L]:-
(a)the child live with the father;
(b)the child spend time with the mother:-
(i)for the whole of the NSW winter and autumn school holidays in 2009;
(ii)for the first half of the NSW Christmas school holidays 2009;
(iii)for reasonable periods if the mother visits [L]; and
(iv)at such alternate or additional times as may be agreed between the parties.
That while the mother remains in Queensland the child have reasonable telephone communication with the mother as agreed and failing agreement each Wednesday (NSW time) at 6.30pm with the mother to place the call and the father to make the child available to receive the call.
That neither party shall denigrate the other in the presence of the child.
That each party is to notify the other within 24 hours should the child be hospitalised whilst in their care.
That each party shall notify the other in writing within three (3) days of any change of address or telephone number.
That neither party is to take the child to a hotel or other licensed premises except for the purpose of a meal.
AND IT IS ORDERED
That the matter is adjourned to 20 July 2009 at 9.30am for further consideration.
IT IS NOTED that publication of this judgment under the pseudonym Mullan & Casey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 907 of 2009
| MR MULLAN |
Applicant
And
| MS CASEY |
Respondent
REASONS FOR JUDGMENT
Introduction
On 1 April 2009, Ms Casey relocated from [L] in NSW to Rockhampton in Queensland with her son [X], who has just turned nine.
The mother maintained that the father, Mr Mullan, agreed to the relocation. The father said that the relocation was unilateral. He certainly wasted no time in filing an application seeking [X]’s immediate return to [L] or at least to the [H] Shire.
The father proposed that if the mother also returned to live in that area, then the previous arrangements for [X] should continue, that is, that [X] should live with the father on alternate weekends and during some school holidays and otherwise live with the mother. He proposed that if the mother did not return then [X] should live with him and spend time with the mother in Rockhampton during school holidays.
The mother said that she had relocated as a result of a family emergency, and that she would not return to [L]. She proposed on both a final and interim basis that [X] live with her in Rockhampton and spend school holiday time with his father.
Background
The parents separated seven years ago, when [X] was only one and a half years old. Prior to separation the parents lived in [L], and they continued to live there after separation.
[X] has always lived primarily with his mother. The mother has two older children, [Y] and [Z]. They are currently part of the mother’s household. [Z] accompanied the mother to Rockhampton. [Y] has remained behind to complete Year 12 at her current school.
The father complained that after separation the mother made it difficult for him to spend time with [X]. The mother disputes that, and to an extent it is ancient history which is no longer relevant. Since 2004 the father has spent time regularly with [X].
The father first filed an application for parenting orders in 2004. Interim orders were made in 2004 and in 2005. The father said that final orders were made by consent on 21 February 2006. I have not been able to verify in the short time available to me whether these orders were ever made. The document attached to the father’s affidavit which purports to be a copy of those orders is not sealed.
Regardless of the status of the court orders, it is common ground that since 2004 [X] has been spending time with the father each alternate weekend from 5.00pm Friday until 5.00pm Sunday. The father said that there were also many occasions when [X] dropped in to see him after school. He was not precise about how often this happened and I am also uncertain about the extent of holiday time the father has spent with [X] in the past.
Until 1 April 2009 [X] attended [T] Public School. I accept that he has been doing well at that school and that he has friends there.
The father set out in his affidavit the background to the mother’s relocation. He said as follows:
“In about early 2009 the Respondent started travelling to Queensland for periods of approximately 1-2 weeks. She said to me words to the effect of :
‘My step mother is ill. I need to help look after her.’
During the periods of time the Respondent travelled to Queensland I cared for [X].
On 15 March 2009 the Respondent came back from Queensland following her trip there. On 16 or 17 March 2009 the Respondent said to me words to the effect of:
‘I am going to Queensland to live. I’m going to move to Rockhampton with [X]. My stepmother is sick and I want to be near her. If you agree to me going you can have [X] for all of the school holidays. I’ll meet you half way.’
The interim parenting orders made on 4 August 2004 (and the unsealed copy of the orders purportedly made on 21 February 2006) contain a provision that if either party wishes to relocate from the [H] area, they shall provide three weeks notice of their intention to do so before any such move. Both parties acted on the assumption that an order of this nature was in force. The mother gave the father a notice on 17 March 2009 saying that she intended to relocate on 14 April 2009. She in fact relocated to Rockhampton with [X] however on 1 April 2009.
In support of his application for [X]’s return the father emphasised that [X] had lived at [L] all his life, and was doing well at [T] Primary School. He said that he and [X] had a close and loving relationship. The father said that in addition to seeing [X] on the alternate weekends, he also saw him on regular occasions when [X] called around to his house in the afternoon. The father said that if [X] moved away from [L], he would not have the opportunity to take him fishing, be involved in sporting activities with him or attend his school events.
The father said that he was a capable parent and in effect submitted that the mother was raising concerns about his parenting only as a tactical move, to bolster her case that [X] should remain with her in Rockhampton. He said that the fact that she was offering him block holiday time and had left [X] with him several times earlier this year when she went to Queensland suggested that she had no genuine concerns about his parenting ability.
In her affidavit filed on 8 May 2009, the mother said that she had relocated because she needed to be in Queensland to care for her mother Ms S, who had been diagnosed with bipolar disorder and dementia. She said that her brother had asked her to come to Queensland as quickly as possible to assist with the care of their mother, because he (the brother) was getting into trouble for taking too much time off work.
During submissions on 13 May 2009, the father’s solicitor said that the father questioned whether the mother was close to Ms S, who the father believed was her step-mother rather than her mother. He was critical of the fact that the mother only attached one document relating to Ms S’s health to her affidavit, and did not provide detailed evidence about exactly what was wrong with Ms S, exactly what role the mother could hope to play in the care of Ms S, and whether there were any other family members who could assist with the care of Ms S to relieve the mother of the need to relocate. The father’s solicitor went as far as to suggest that the possibility that the mother had relocated on a whim could not be ruled out.
I adjourned the matter to Friday 15 May 2009 for delivery of the interim judgment. On that day the father’s solicitor sought to re-open the father’s case. He informed me that he had discovered that Ms S was not in Rockhampton but was in fact in Caloundra, about 540 kilometres from Rockhampton.
The mother’s counsel confirmed that this was true. I then ordered that the mother file a further affidavit addressing this issue and adjourned proceedings to 21 May 2009 for further submissions.
The affidavit filed by the mother on 20 May 2009 confirmed that Ms S was in Caloundra and had been for some time. The mother travelled from [L] to Caloundra, not Rockhampton, earlier this year, in order to visit Ms S.[1]
[1] Mother’s Affidavit filed 20 May 2009 paragraph 21
In her 20 May 2009 affidavit the mother said that Ms S needed to go into a nursing home and would like to go into a home in Rockhampton rather than Caloundra. She said that:
“Mr B [her foster brother] and I have looked into facilities that are likely to be suitable for Mum in the Rockhampton area, depending on the level of care required, and at the present time the [Nursing Home at North Rockhampton] is the most suitable.”[2]
[2] Mother’s affidavit paragraph 35
Despite this new evidence the mother maintained that she wanted/needed to be in Rockhampton and that she would not return to [L]. She submitted that it was in [X]’s best interests that he remain with her.
It was the mother’s case that [X] had lived with her all his life and had a close relationship with her. She said that she had always encouraged the father to take an active role in [X]’s upbringing, but had found the father very difficult to deal with.
The mother was critical of the father’s lifestyle which she said involved regular alcohol consumption and lengthy periods spent at licensed premises. She said that the father sometimes took [X] to licensed premises, and failed to get [X] to school sometimes when [X] was in his care, because the father slept in. The mother claimed that these were not new issues raised for the first time in these proceedings, and claimed that she had tried to get the father to attend mediation last year.
The mother said that the father had never attended a parent teacher interview or any school event.
The mother said that [X] did not want to live with his father, and had threatened to run away if he was made to return to [L] to live with him.
The mother also said that the she met all of the costs of [X]’s schooling, medical bills and optometrist’s bills. By implication she questioned whether the father would be financially able to care for [X] if [X] lived primarily with him.
Matters in dispute
There are many matters in dispute and issues about which I cannot make findings. These include the following:
a)whether the mother moved to Rockhampton because of Ms S’s illness, or whether she had some other motivation such as a desire to leave [L] following the break-up of her second marriage;
b)whether and when Ms S will in fact move from Caloundra to Rockhampton;
c)whether the mother needs to live in Rockhampton in order to provide ongoing support for Ms S;
d)whether the father initially consented to the mother’s relocation and if so the implication of this;
e)the nature of [X]’s attachment to each of his parents;
f)[X]’s views about where he should live;
g)the extent to which the father spent time with [X] at times in addition to the alternate weekends provided for in the court orders;
h)whether the father has the financial capacity to care for [X] on a full time basis;
i)whether there are any other reasons such as the father’s alcohol consumption or attendance at licensed premises which raise a concern about the father’s capacity to care for [X] on a full time basis;
j)the extent to which the father has been involved in extra-curricular activities and school activities with [X] in the past, and the extent to which he is likely to be involved in these activities with him in the future.
Matters not in dispute
There are also many matters which are not in dispute and these include the following:
i)although the mother cited Ms S’s illness as the reason for her move to Rockhampton, Ms S is in fact living in Caloundra, 540 kilometres from Rockhampton;
ii)if and when Ms S will move to Rockhampton is unknown;
iii)Ms S will be going into a nursing home, and even if she moves to Rockhampton she will not be dependent on the mother for her day-to-day care;
iv)the mother has been [X]’s primary carer since he was one and half years old;
v)from at least mid-2004, [X] has if nothing else spent time with his father on alternate weekends;
vi)until 1 April 2009 [X] had lived all his life in [L], in close proximity to both his parents.
[X]’s best interests
In making parenting orders about [X] I am required to treat [X]’s interests as the paramount consideration. Sections 60CC(2) & (3) of the Family Law Act set out the considerations to which I must have regard in determining [X]’s best interests.
The primary considerations in s.60CC(2) are as follows:
“a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.”
I accept that [X] will benefit from having a meaningful relationship with each of his parents.
The mother complained about aspects of the father’s past care of [X], but there was no evidence that [X] was likely to suffer physical or psychological harm from being exposed to abuse neglect or family violence in the separate care of either of his parents.
As to the additional considerations in section 60CC(3), the mother said that [X] did not want to live with his father and had expressed a wish to remain in Rockhampton. I cannot place weight on the mother’s untested evidence about [X]’s views, especially as she has her own vested interest in living with her son in the location of her choice.
As to the nature of [X]’s relationships, I am satisfied that [X] has a good relationship with his mother. The father, to his credit, did not suggest otherwise. The mother questioned whether [X] had a good relationship with his father, but she proposed that [X] spend regular and substantial holiday time with his father. I cannot exclude the possibility that the mother, influenced by her strong desire to live in Queensland is emphasising the negatives in [X]’s relationship with his father and ignoring the positives.
I cannot make any findings about the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
I must consider the likely effect of any change in the child’s circumstances, including the likely effect of separation of the child from:
a)either of his parents; or
b)any other child, or other person (including any grandparent or other relative of the child) with whom the child has been living.
[X] has already moved to Rockhampton with his mother and thus has already undergone a change in his circumstances. The mother said that [X] had adapted well to this change, liked his school and had made friends and wanted to remain in Rockhampton. I cannot place weight on this evidence. I am unable to make any findings about the effect on [X] of continuing to live in Rockhampton.
If I order [X]’s return to [L], he will return to a place he knows well and he will be able to see his father regularly. If the mother also returns then there is every reason to be confident that [X] will cope well. If the mother does not return then [X] will live primarily with the father, which will be a significant change for him, and he will see his mother only during school holidays.
I cannot make any findings about the likely effect on [X] of the change involved in a return to [L] on the basis of the untested evidence currently available. [X]’s relationship with his father may be better than the mother admits, and he may not have adapted as well as the mother claims to the Rockhampton move. If that is the case he may cope well if he returns to [L] and lives with his father. If on the other hand [X] is strongly attached to his mother, and has a far less close relationship with his father and has adapted well to living in Rockhampton, [X] may not cope well with a return to [L].
I must consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with a parent on a regular basis.
There will be travel costs involved for the parties if one parent lives in Rockhampton and the other in [L], no matter where [X] lives.
Neither party really addressed this issue in their affidavits. However each parent proposed that [X] spend holidays with the other if the parents continued to live in different locations and neither suggested that finances might prevent this happening in the immediate future.
I must consider the capacity of each of the parents to provide for the needs of the child, including his emotional and intellectual needs.
I am satisfied that the mother has the capacity to meet [X]’s day to day and intellectual needs. I cannot make any findings about her capacity to meet his emotional needs.
The mother questioned the father’s parenting capacity in various respects and I cannot make any findings about his capacity on the state of the evidence. However I do note that despite the mother’s complaints about the father she proposed that [X] spend extended time with him during school holidays, subject it is true to orders being made about alcohol consumption and attendance at licensed premises.
I must consider the attitude of each parent to the duties and responsibilities of parenthood. The father suggested in effect that the mother showed a poor attitude to the duties and responsibilities of parenthood by unilaterally relocating and then insisting that she would not return if [X] was ordered to return. I cannot make any findings about this issue on the state of the evidence.
Family violence is not an issue in these proceedings, and there are no family violence orders.
Parental Responsibility
The parents have in the past had an order for shared long term decision making. It is appropriate to make an order in the current terminology that is, an order for equal shared parental responsibility.
Conclusion
Relocations inevitably result in considerable change for a child and because the results of a relocation can be so serious and far reaching, interim orders for relocation are not commonly made.
In C & S[3] Warnick J. said as follows:
“In my view it is clear that the interests of any child or children including the children here, are very much connected with any questions directly affecting those children, such as relocation being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents from what it or they had been immediately beforehand.”
[3] C & S (1998) FamCA 66
In Morgan & Miles[4] Justice Boland was dealing with an appeal from interim orders made by a Federal Magistrate following a unilateral relocation by one of the parents. Her Honour observed that:
“It appears to me that the very difficult issues involving a relocation make it highly desirable that, except in cases of emergency, the arrangements which will be in a child’s best interests should not be determined in an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases.”
[4] Morgan & Miles (2007) FamCA 1230
The mother’s first affidavit created the impression that she had relocated to Rockhampton on short notice as a result of a genuine family emergency, and that she simply could not return as a result of her family commitments.
If this truly had been the case, it might have tipped the balance in favour of allowing the mother to remain with [X] in Rockhampton in the interim. The mother is after all a proven good carer for [X], he has lived with her all his life. There is some strength in the submission by the mother’s counsel that this is not a case where allowing [X] to remain in Rockhampton in the interim would necessarily set up a status quo which could not be reversed.
I am not persuaded however, now that additional evidence has emerged, that there was any necessity for the mother to relocate to Rockhampton on short notice nor am I persuaded that she could not return to [L] if she chose.
The mother is not [X]’s only parent. He also has a bond with his father. If [X] remains in Rockhampton he will see his father far less frequently than he has done up until recently, and will see him only in holiday circumstances.
When orders were made in 2004, 2005 and (I presume) 2006 the mother and father agreed that they would share responsibility for making decisions concerning [X]’s long term care welfare and development. Relocation is a decision about [X]’s long term care welfare and development (or a decision about a major issue). The father has made it clear that he does not consent to the relocation and he filed an application very promptly after the mother left [L].
In my view [X]’s interests would best be served if he was returned to [L] pending a final hearing, so that the mother’s relocation proposal can be properly considered, and weighed and balanced against other options for [X]’s care, without the “impediment of the situation of recent development.”
I intend to order that the mother return [X] to [L] at her expense within seven days.
It would be ideal for [X] if his mother also returned to [L] so that he could resume spending regular time with each of his parents. The mother’s counsel said during submissions that the mother would not return even if [X] had to go back, but the mother might change her mind. Ms S is still in Caloundra and the mother could visit Caloundra from [L], just as she could visit Caloundra from Rockhampton. The mother’s furniture is in storage in Port Macquarie and she could retrieve that furniture. The mother is familiar with [L] and did not suggest that she would have any difficulty finding accommodation if she returned.
I am satisfied however that [X] can be properly cared for by the father in the interim if the mother chooses not to return pending a final hearing.
Although the father is untried as a full time carer he has been involved with his son regularly since 2004 and the mother proposed that he spend regular holiday time with [X]. The mother left [X] with the father on occasions earlier this year when she visited Queensland.
I intend to make orders about interim arrangements for [X]’s care in the alternative, to deal both with the situation if the mother also returns and the situation if she does not.
Considering first the appropriate arrangements if the mother returns, as I have made an order for equal shared parental responsibility I am required by Section 65DAA of the Family Law Act to consider making an order for equal time or substantial and significant time. If the mother returns to [L] such arrangements for [X] would be reasonably practicable. However the father did not seek such orders. He proposed that if the mother also returned the arrangements for [X] should be as they were before the relocation. The mother, while saying that she would not return, proposed through her counsel during submissions on 21 May 2009 that the option of a return to the previous arrangements be left open to her.
It is therefore reasonable to make orders in terms similar to those in the unsealed 2006 orders.
The 2006 orders do not provide for the father to have time with [X] every school holidays. However I intend to order that each school holiday period be shared.
If the mother decides to remain in Rockhampton the orders will be that [X] live with his father and spend time with his mother during the NSW school holidays.
I do not intend to make an order restraining the father from consuming alcohol while [X] is with him. There is insufficient evidence for me to make a finding that the father’s alcohol consumption warrants such an order being made and no evidence that the mother imposed such a condition on the father when she left [X] on occasions with him earlier this year.
I do not intend to order a Family Report immediately. Given the information that has emerged about Ms S, I intend to list the matter for mention before me on 20 July 2009 at 9.30am. By that time the orders I make will have been carried into effect and each party will have had a chance to reflect on their positions. If at that time the mother still seeks a relocation, I will order a Family Report.
For all the above reasons the orders of the court will be set out at the beginning of the judgment.
I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: Rachel Hodgson
Date: 22 May 2009
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