Nemcova & McLeod

Case [2024] FedCFamC1F 752

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Nemcova & McLeod [2024] FedCFamC1F 752

File number(s): BRC 6392 of 2022
Judgment of: JARRETT J
Date of judgment: 8 November 2024
Catchwords: FAMILY LAW – PARENTING – Applicant proposed relocating with children to the United Kingdom – Children aged six and three – Children have good relationship with respondent – Where relationship will still be one of positive significance following relocation – Where applicant’s parenting currently adequate despite poor mental health – Where applicant’s wellbeing will be improved if permitted to relocate – Whether best interests adversely affected to justify imposition on parent’s right to relocate – Order made permitting relocation
Legislation: Family Law Act 1975 (Cth) s 60CA and s 60CC
Cases cited:

Adamson & Adamson (2014) 51 Fam LR 626

Fitzwater & Fitzwater (2019) 60 Fam LR 212

Godfrey & Sanders [2007] FamCA 102

Isles & Nelissen (2022) 65 Fam LR 288
Division: Division 1 First Instance
Number of paragraphs: 91
Date of hearing: 2, 3 & 4 September 2024
Place: Brisbane
Counsel for the Applicant: Mr Jordan
Solicitor for the Applicant: O’Reilly Shaw Lawyers
Counsel for the Respondent: Ms Downes
Solicitor for the Respondent: BGM Family Lawyers
Counsel for the Independent Children’s Lawyer: Ms Wardle
Solicitor for the Independent Children’s Lawyer: Gary Rolfe Solicitor

ORDERS

BRC 6392 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS NEMCOVA

Applicant
AND:

MR MCLEOD

Respondent
AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

8 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The applicant and respondent have joint decision making for all major long-term issues affecting the children X, born 2018, and Y, born 2021.

2.The children live with the applicant.

3.The applicant be at liberty to relocate the children’s permanent residence to the United Kingdom after 1 June 2025.

4.Orders 5 through 18 shall only apply prior to the children’s relocation to the United Kingdom.

5.The children shall spend time with the respondent each alternate weekend from 9.00am (or after school, if a school day) Friday until 9.00am (or before school, if a school day) on the immediately following Monday.

6.During the children’s school holiday periods and subject to the other provisions of these orders, the children shall spend time with the respondent as follows:

(a)for the December/January 2024 school holiday period, from the conclusion of school on 12 December 2024 until 4.00pm on 26 December 2024, and from 9.00am on 9 January 2025 until 9.00am on 23 January 2025;

(b)from conclusion of school on 4 April 2025 to before school on 22 April 2025, being the entirety of the April 2025 school holiday period; and

(c)for the purposes of these orders, following the commencement of the new school term, the children’s time with the respondent will continue to apply, as if the usual arrangement had continued ‘in the background’ throughout the relevant school holiday period (noting that the intention is to ensure the usual weeks are not ‘flipped’ as a consequence of…

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AGLC
Nemcova & McLeod [2024] FedCFamC1F 752
Case
[2024] FedCFamC1F 752
Decision Date

CaseChat Overview and Summary

Nemcova & McLeod is a family law case concerning a dispute over the relocation of two young children with their mother from Australia to the United Kingdom. The applicant, Nemcova, sought to permanently relocate with her children, aged six and three, to the United Kingdom, while the respondent, McLeod, opposed this relocation and advocated for the children to remain in Australia. The court had to determine whether the best interests of the children would be adversely affected by the relocation, thereby justifying any restriction on the applicant’s right to relocate.

The legal issues before the court included whether the children's best interests would be harmed by the relocation and, if so, to what extent. The court had to weigh the benefits of the children maintaining a close relationship with their father against the potential benefits to the children of living with their mother in an environment that could enhance her wellbeing and, in turn, their care. The court also considered the impact of any findings about domestic violence, which the respondent had previously consented to a protection order in relation to, though these findings were not to influence the relocation decision.

In reaching its decision, the court found that the children’s primary carer, the applicant, would experience significant improvement in her mental health and wellbeing if she were permitted to relocate to the United Kingdom. The court recognised the importance of the children’s relationship with their father but concluded that the benefits of the children living with their mother, whose care would be improved by better mental health, outweighed the detriment from reduced physical presence of the father. The court also noted the genuine fear expressed by the applicant regarding the respondent’s behaviour and found that this fear was valid. The order made permits the applicant to relocate with the children to the United Kingdom after June 2025, with detailed provisions for the children’s time to be spent with the respondent both before and after relocation.

Orders

Orders of the court

BRC 6392 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS NEMCOVA

Applicant

AND:

MR MCLEOD

Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

8 NOVEMBER 2024

THE COURT ORDERS THAT:

1. The applicant and respondent have joint decision making for all major long-term issues affecting the children X, born 2018, and Y, born 2021.

2. The children live with the applicant.

3. The applicant be at liberty to relocate the children’s permanent residence to the United Kingdom after 1 June 2025.

4. Orders 5 through 18 shall only apply prior to the children’s relocation to the United Kingdom.

5. The children shall spend time with the respondent each alternate weekend from 9.00am (or after school, if a school day) Friday until 9.00am (or before school, if a school day) on the immediately following Monday.

6. During the children’s school holiday periods and subject to the other provisions of these orders, the children shall spend time with the respondent as follows:

(a) for the December/January 2024 school holiday period, from the conclusion of school on 12 December 2024 until 4.00pm on 26 December 2024, and from 9.00am on 9 January 2025 until 9.00am on 23 January 2025;

(b) from conclusion of school on 4 April 2025 to before school on 22 April 2025, being the entirety of the April 2025 school holiday period; and

(c) for the purposes of these orders, following the commencement of the new school term, the children’s time with the respondent will continue to apply, as if the usual arrangement had continued ‘in the background’ throughout the relevant school holiday period (noting that the intention is to ensure the usual weeks are not ‘flipped’ as a consequence of the school holiday period.

7. Unless otherwise agreed between the applicant and respondent in writing:

(a) the children shall spend Christmas Day in 2024 with the respondent, in accordance with order 6(a) herein, and shall celebrate Christmas with the applicant when they return to her care in accordance with that order;

(b) the children shall spend Easter in 2025 with the respondent, in accordance with order 5(b) herein; and

(c) the applicant is at liberty to speak to the children for one further occasion at 7.00am on Christmas Day 2024 and on Easter Sunday in 2025 and for that purpose, the applicant will initiate video contact.

8. Unless otherwise agreed between the applicant and the respondent in writing, if a child’s birthday falls when they are in the applicant’s care:

(a) if not a school day, the children shall spend time with the respondent from 12.00pm until 5.00pm on that day; and

(b) if a school day, then the respondent is at liberty to speak to the children for one further occasion at 7.00am on the child’s birthday and for that purpose the respondent will initiate video contact.

9. Unless otherwise agreed between the applicant and the respondent in writing, if a child’s birthday falls when they are in the respondent’s care:

(a) if not a school day, the children shall spend time with the applicant from 12.00pm until 5.00pm on that day; and

(b) if a school day, then the applicant is at liberty to speak to the children for one further occasion at 7.00am on the child’s birthday and for that purpose the respondent will initiate video contact.

10. Unless otherwise agreed between the applicant and the respondent in writing, if the applicant’s birthday falls when the children are in the respondent’s care:

(a) if not a school day, the children shall spend time with the applicant from 12.00pm until 5.00pm on that day; and

(b) if a school day, then the applicant is at liberty to speak to the children for one further occasion at 7.00am on the child’s birthday and for that purpose the respondent will initiate video contact.

11. Unless otherwise agreed between the applicant and the respondent in writing, if the respondent’s birthday falls when the children are in the applicant’s care:

(a) if not a school day, the children shall spend time with the respondent from 12.00pm until 5.00pm on that day; and

(b) if a school day, then the respondent is at liberty to speak to the children for one further occasion at 7.00am on the child’s birthday and for that purpose the respondent will initiate video contact.

12. Unless otherwise agreed between the applicant and the respondent in writing, if Father’s Day is not a day in which the children are in the respondent’s care, the children shall spend time with the respondent from 9.00am on Father’s Day until 9.00 the immediately following Monday.

13. Unless otherwise agreed between the applicant and the respondent in writing, if Mother’s Day is not a day in which the children are in the applicant’s care, the children shall spend time with the applicant from 9.00am on Mother’s Day until 9.00 the immediately following Monday.

14. Unless otherwise agreed between the parties in writing, changeover shall occur as follows:

(a) where changeover is to occur on a school day:

(i) the respondent or his nominee shall collect the children from school at the commencement of their time with the respondent; and

(ii) the respondent or his nominee shall return the children to school at the conclusion of their time with the respondent; and

(b) where changeover is to occur on a non-school day:

(i) the respondent or his nominee shall collect the children from C Service Station at the commencement of their time with the respondent; and

(ii) the respondent or his nominee shall return the children to C Service Station at the conclusion of their time with the respondent.

15. The applicant shall facilitate the children communicating with the respondent between 4.20pm and 4.50pm each Tuesday, Thursday and Saturday that the children are in her care when the respondent is on night shift and between 6.00pm and 6.20pm each Tuesday, Thursday and Sunday that the children are in her care when the respondent is on day shift, with the respondent to initiate video contact.

16. The respondent shall facilitate the children communicating with the applicant between 4.20pm and 4.50pm each Sunday that the children are in his care, with the applicant to initiate the video contact.

17. The children are at liberty to communicate with the party with whom they are not in the care of at all reasonable times as requested by the children or either of them via video contact and the party with the care of the children shall facilitate that contact.

18. The caring party shall facilitate the children communicating with the non-caring party between 7.00am and 7.30am on special occasions, as provided herein and the non-caring party will initiate the video contact on those special occasions.

19. Order 20 apply only following the children’s relocation to the United Kingdom.

20. The children spend time with the respondent as agreed between the parties in writing, and failing agreement as follows:

(a) on up to four occasions each calendar year (to coincide with the children’s school holiday periods):

(i) until 1 January 2025, for up to seven (7) consecutive nights on each occasion;

(ii) from 1 July 2025, for up to ten (10) consecutive nights on each occasion;

(iii) from 1 January 2026, for up to two (2) consecutive weeks on each occasion; and

(iv) from 1 July 2026, for up to three (3) consecutive weeks on each occasion;

(b) for the purposes of facilitating the children’s time with the respondent:

(i) by no later than 1 December 2025 and each calendar year thereafter, the applicant shall provide the respondent with notice of the dates that she intends to travel to Australia with the children to facilitate the children spending time with the respondent in Australia on one occasion the following calendar year (with such occasion to include the period from Christmas Eve to Boxing Day in even-numbered years);

(ii) by no later than 31 December each calendar year, the respondent shall provide the applicant with notices of the dates that he intends to travel to the United Kingdom to see the children on up to three occasions in the following calendar year (with the period from Christmas Eve to Boxing Day excluded in odd-numbered years);

(iii) no later than sixty (60) days prior to the intended travel, the travelling party is to provide to the other party copies of purchased flight tickets and accommodation itineraries; and

(iv) the applicant and respondent shall each pay their own costs of and associated with the necessary travel and/or accommodation in order to comply with the immediately preceding Orders and the applicant shall pay and be responsible for the return flights for the children to spend time in Australia each calendar year.

21. Changeover shall be as agreed between the parties in writing, and failing agreement:

(a) changeover in Australia shall take place at Brisbane Airport; and

(b) changeover in the United Kingdom shall take place at the relevant nursery/school if the children are attending nursery/school, and if not then at a location specified by the applicant.

22. The applicant shall facilitate the children to have video contact with the respondent:

(a) on not less than two occasions per week at times as agreed between the applicant and the respondent, with the applicant to initiate the video contact; and

(b) at an agreed time on the respondent’s birthday, the children’s birthdays, Father’s Day and Christmas Day.

23. During the time the children spend with him, the respondent shall facilitate the children to have video contact with the applicant on not less than two (2) occasions per week at times as agreed between the applicant and respondent, with the respondent to initiate the video contact.

24. The children shall be at liberty to telephone the other party with whom they are not in the care of at all reasonable times as requested by the children or either of them and the party with the care of the children shall facilitate that contact.

25. The applicant and respondent shall ensure that within fourteen (14) days of any request to do so, each shall do all acts and things and sign all deeds, documents, instruments and writings as may be necessary so as to facilitate the children’s travel to and from Australia, including but not limited to, signing all Australian and British Passport Applications and/or renewal and/or extension applications and any other necessary visa/travel documentation for the children and the costs associated with obtaining said passports and/or documentation is to be borne equally between the applicant and respondent.

26. Each party must keep the other advised as to the educational institutions, religious organisations and extra-curricular activities the children might attend and participate in from time to time.

27. Each party must keep the other advised as to the names, addresses and telephone numbers of the children’s treating health professionals, and shall keep the other party informed of any such changes in those details.

28. Each party must keep the other informed of appointments made for the children with any health professional specialists, including by providing the details of and reasons for that appointment.

29. In the event of a medical emergency, the party who the children are with is to contact the other party by way of telephone as soon as reasonably practicable of the emergency occurring, and provide full details of the emergency.

30. This Order authorises and directs any educational institution or extra-curricular organisation upon which the children or either of them may attend to provide to each party, at the expense of the requesting party, any information and copies of documentation as may be requested by them from time to time.

31. This Order authorises and directs any medical or associated practitioner providing treatment to the children, or either of them, to provide to each party, at the expense of that requesting party, any information and copies of documentation as may be requested by them from time to time.

32. Each party shall keep the other informed in relation to the home address of the children, the party’s telephone contact number and email address and in the event that any of those contact details change, the party must notify the other within 48 hours of such a change including by providing the updated contact details.

33. The applicant and respondent shall at all times:

(a) respect the privacy of the other party;

(b) speak of the other party respectfully and refrain from vernal abuse of the other party and sending abusive or denigrating correspondence to the other party; and

(c) refrain from any form of denigrating or insulting the other party, or their extended family relatives, in the presence of or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other party or their extended family relatives in the hearing or presence of the children.

34. In the event the applicant and respondent are unable to reach agreement in relation to major long term issues affecting the children, the parties must attend upon an agreed, appropriately qualified Family Dispute Resolution Practitioner or counsellor in an attempt to resolve those issues without recourse to further litigation.

35. A request may be made by either party for the parties to attend such practitioner or counsellor in writing and set out:

(a) the request that the other party attend dispute resolution;

(b) the major long-term issue or issues to be discussed in the presence of the Family Dispute Resolution Practitioner or counsellor;

(c) the name of the proposed Family Dispute Resolution Practitioner or counsellor; and

(d) three available dates and times for attendance at the proposed Family Dispute Resolution.

36. The party in receipt of a request must respond to the other party’s written request within seven days of the date of that request.

37. The parties must attend at the Family Dispute Resolution at the earliest possible opportunity and, unless otherwise agreed, within no later than sixty (60) days of the request to attend.

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

This is a finely balanced case. I was assisted greatly by the thoughtful and detailed submissions of counsel for both parties and for the independent children’s lawyer. I have come to the conclusion that the children should live with the applicant in the United Kingdom. These are my reasons for so concluding. BACKGROUND The applicant is 34 years of age. She was born and raised in the United Kingdom, but is a permanent resident of Australia. Her parents are separated but both remain in the United Kingdom. She came to Australia in 2015 on a working visa. She has a background in a specific industry. She lives in a rented home in Suburb D and is not presently employed. The respondent is 53 years of age. He presently works on a seven-day on, seven-day off fly in, fly out roster, flying out either Tuesday or Wednesday and back home the following Wednesday. He lives in a rented home in Town E he shares with a relative. The parties commenced living together in Town F in 2017. The applicant fell pregnant within three months of the relationship commencing. During the relationship, she worked part-time, while the respondent worked a roster of eight days on and six days off. In 2017, the applicant obtained a partner visa to remain in Australia. X was born in 2018. In mid-2020, the parties moved to Region G and in 2021, Y was born. Throughout the relationship and prior to COVID-19 border restrictions, the applicant regularly travelled with the children to the United Kingdom. In mid-2018, the applicant travelled to the United Kingdom with X for four weeks. In late 2018, the applicant went with X for six weeks and the respondent joined for four of them. In late 2019, the applicant went with X again for six weeks. In late 2021, after travel restrictions were lifted, the applicant and the children went to the United Kingdom with a view to staying for two months. The respondent joined them three weeks later and stayed for a month. While in the United Kingdom, a dispute arose between the respondent and the maternal grandmother. It was clear that the maternal family wanted the parties and their children to live permanently in the United Kingdom, whilst the respondent was more tied to his employment in Australia. As a result, the parties signed a “Family Relocation Agreement” on 15 January 2022 which was exhibited to the applicant’s affidavit. Inter alia, the agreement outlined a number of steps for the parties to take with an aim to be settled in the United Kingdom in time for X to start primary school in 2023. Around this time, the parties also engaged in some discussions via text message about possible homes they could live in should they move to the United Kingdom. The parties separated after the respondent returned to Australia. The respondent wanted the applicant and children to return to Australia, but the applicant had decided to remain in the United Kingdom and instead wanted the respondent to sell his belongings and move over with them. The respondent sent the applicant an irate text message and withdrew the entirety of their savings (some $9,000) from their joint bank account.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is self-evident that the best interests of the child are paramount, not the interests or needs of the parents: s 60CA. However, it is also apparent from the Full Court’s reasons that a parent’s right to relocate should only be limited to the extent necessary to avoid adverse effects on the children’s best interests. Of course, each case has to be determined on its own facts and one of the questions in this case is whether a move to the United Kingdom for the children will have such an adverse effect on them that applicant’s right to live wherever she chooses should be curtailed. CONCLUSIONS Again, this is a finely balanced case. The applicant seeks that she be permitted to live permanently with the children in the United Kingdom. They will see the respondent two or three times per year, once in Australia and once or twice in the United Kingdom. The respondent and the independent children’s lawyer seek that the children remain in Australia. They will live with the applicant and spend three or four nights per fortnight with the respondent. Both proposals have the advantages and disadvantages I have identified earlier in these reasons. If I order the children to remain in Australia, they will benefit from the current strength of their relationships with the respondent. He will be physically present in their lives both for significant events and also the mundanity of daily life. They will have stronger relationships with him and form longer-lasting memories, especially Y who is only three. However, their primary carer, the applicant, will I find continue to have poor mental health and wellbeing. She will not have the same level of employment opportunity. She will not be supported to the same degree by her immediate family. Whilst I consider her parenting will still be adequate, the children will lose out on their opportunity to be parented by her best self. If I permit the applicant to live with the children in the United Kingdom, they will benefit from the applicant’s enhanced wellbeing. She will have access to opportunities which improve her quality of life and be supported personally and in her capacity as a parent by her immediate family. The children will no doubt benefit from her being her best self. However, they will lose regular and frequent physical presence of the respondent in their lives. Whilst their relationships with him are still likely to be of positive significance, they will not have the same character as they presently do. I consider that on balance the applicant’s proposal will bring more benefit to these children than will the proposals of either the respondent or the independent children’s lawyer. I reach that conclusion for two principal reasons. First, I consider it is in the children’s best interests that they live in the United Kingdom with the applicant. On any of the proposals before the court, the children will spend the majority of their time with the applicant. Because they are most frequently in the applicant’s care, I consider the benefit they will attain from her improved wellbeing and the increased ability they will have to draw upon her resources, as described by Mr B, outweighs the detriment to them from a change in the nature of their relationships with the respondent. I consider that the applicant will encourage and facilitate those relationships.

Ratio Decidendi

Legal Principle Established

The second matter worthy of discussion is violence. The respondent consented to a protection order without admissions in the Magistrates Court of Queensland in 2022, which is due to expire in 2027. It was accepted by counsel for the applicant in submissions that any findings I made about violence would not factor into the overall decision to be made. For that reason, I do not propose to make any findings of fact about specific incidents alleged by the applicant. Suffice to say, she outlined numerous incidents in detail when the respondent had behaved aggressively towards her, often under the influence of alcohol. The respondent provided some explanations for the incidents described by the applicant. Whatever the truth of those incidents, I accept from the applicant’s evidence-in-chief and from her demeanour in the witness box, that her fear of the respondent was genuine. CONSIDERATION During submissions, counsel for the respondent handed up a list of the following findings she sought to be made by the court:1.That it is in the children’s best interests for them to continue to benefit from a meaningful relationship with the Father.2.That the co-parenting relationship and the parental communication, is effective and functional. 3.That the Mother has the support of the Father and wider paternal family available to her to assist in her care of the children in Australia. 4.That the Mother has, either intentionally or by not taking appropriate action, allowed herself to feel isolated and unsupported living in Australia. 5.That the Mother’s mental health will not be so negatively impacted by a decision for the children to live in Australia that it will impair her ability to care for the children.6.That the maternal family will continue to provide support to the Mother, in whatever ways they can, if the children live in Australia. 7.That the Mother has, either intentionally or by not using appropriate restraint, involved the child, [X] in the proceedings to assist the Mother’s case to live in [the United Kingdom]. 8.In so doing, the Mother has caused emotional and/or psychological harm to the child. 9.That the Mother would not fully engage in facilitating the children’s meaningful relationship with the Father if they lived in [the United Kingdom].10.That given the maternal grandmother’s views of the Father, she is unlikely to support the children’s relationship with the Father.11.That it is not in the children’s best interests for the Mother to relocate the children’s home to [the United Kingdom]. I can comfortably make the first finding. Both parties agreed it was in the children’s best interests to continue to benefit from a meaningful relationship with the respondent. Although the term ‘meaningful relationship’ is no longer of statutory significance given the amendments to s 60CC of the Family Law Act 1975 (Cth), the Act still refers to the benefit to children of a relationship with their parents. The question in this case is not whether the children will derive a benefit from a relationship with the respondent, but the effect upon the nature of that relationship (and accordingly the nature of the benefit derived by them from it) of the proposals of each of the parties and the independent children’s lawyer.