Newell & Warwick
[2022] FedCFamC2F 1726
Federal Circuit and Family Court of Australia
(DIVISION 2)
Newell & Warwick [2022] FedCFamC2F 1726
File number(s): MLC 12145 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 15 November 2022 Catchwords: FAMILY LAW – interim hearing – urgent application regarding unilateral relocation – father having daily time during school term – impact of floods on availability of accommodation did not require evidence – mother unable to find accommodation where she was living – circumspection when mother moves to town where her hew partner lives – what is practical – mother permitted to reside in new location. Legislation: Evidence Act 1995 (Cth), s 144
Family Law Act 1975 (Cth), ss 60CC, 65B, 65DAA, 65DAC, 69ZL
Cases cited: AMS v AIF (1999) 199 CLR 160
Chetti & Bhavalakar [2022] FedCFamC2F 194
Franklyn & Franklyn [2019] FamCAFC 256
Goode & Goode [2006] FamCA 1346
Keavney & Mohlis [2021] FCCA 396
Morgan & Miles (2007) FLC ¶93-343
Oswald & Karrington (2016) FLC ¶93-726
Sampson & Hartnett (No. 10) [2007] FamCA 1365
Stringer & Nissen (No. 2) (2019) FLC ¶93-922
Wilburn & Wilburn (2020) FLC ¶93-979
Division: Division 2 Family Law Number of paragraphs: 42 Date of hearing: 15 November 2022 Place: City B Counsel for the Applicant: Mr D. Carne Solicitor for the Applicant: Ella Thompson Legal Counsel for the Respondent: Ms A. Malik Solicitor for the Respondent: Brooks Lawyers Pty Ltd ORDERS
MLC 12145 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR NEWELL
Applicant
AND: MS WARWICK
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
15 NOVEMBER 2022
THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
Parental Responsibility
1.The parties have equal shared parental responsibility for the children X born in 2009, Y born in 2012, and Z born in 2013 (the children).
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Care Arrangements
2.The children live with the mother.
3.The children spend time with the Father during the school term as follows:
(a)Each alternate weekend, from 4:00pm Friday until 5:00pm Sunday;
(b)Each Wednesday evening from the conclusion of school to 7:00pm, such time to occur in the City B area; and
(c)Such other times as may be agreed between the parties in writing.
AND THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
Special Occasions
Mother’s special occasion time
4.If the children are in the care of the father pursuant to paragraph 3 of these orders, his time is suspended on the following days:
(a)On Christmas Day as follows:
(i)From 2:00pm 24 December until 2:00pm 25 December in even numbered years.
(ii)From 2:00pm 25 December until 2:00pm on 26 December in odd numbered years.
(b)At Easter as follows:
(i)From 3:30pm on the Thursday prior to Good Friday until 6:00pm Easter Saturday in even numbered years;
(ii)From 6:00pm Easter Saturday to 10:00am on the Tuesday following Easter Monday in odd numbered years.
(c)For the children’s birthdays and the Mother’s birthday:
(i)If the birthday falls on a school day, from the end of school until 8:00pm.
(ii)If the birthday does not fall on a school day, from 11:00am until 4:00pm.
(d)From 6:00pm on Mother’s Day Eve until the commencement of school on the Monday following Mother’s Day.
(e)Such other times that may be agreed between the parties in writing.
Father’s special occasion time
5.If the children are in the care of the mother pursuant to paragraph 2 of these orders, her time is suspended on the following days:
(a)On Christmas Day as follows:
(i)From 2:00pm 24 December until 2:00pm 25 December in odd numbered years.
(ii)From 2:00pm 25 December until 2:00pm on 26 December in even numbered years.
(b)At Easter as follows:
(i)From 3:30pm on the Thursday prior to Good Friday until 6:00pm Easter Saturday in odd numbered years;
(ii)From 6:00pm Easter Saturday to 10:00am on the Tuesday following Easter Monday in even numbered years.
(c)For the children’s birthdays and the Father’s birthday:
(i)If the birthday falls on a school day, from the end of school until 8:00pm.
(ii)If the birthday does not fall on a school day, from 11:00am until 4:00pm.
(d)From 6:00pm on Father’s Day Eve until the commencement of school on the Monday following Father’s Day.
(e)Such other times that may be agreed between the parties in writing.
Holiday time
6.During the gazetted Victorian school term 1, 2 and 3 holidays, the children spend time with the parties as follows:
(a)With the Mother for one week of the school holidays, with such time to commence at 5:00pm on the first Friday of the holidays and conclude at 5:00pm on the middle Friday of the holidays;
(b)With the Father for one week of the school holidays, with such time to commence at 5:00pm on the middle Friday of the holidays and conclude on the Monday at the commencement of the following school term; and
(c)Such other times that may be agreed between the parties in writing.
7.During the gazetted Victorian long summer holidays at the conclusion of Term 4, on a week about basis, with the Mother to have the first week, from 5:00pm on the first Friday of the holidays, and changeover to occur on the same day each week thereafter.
Communication
8.Each party will facilitate the children telephoning the other party if the child requests to do so.
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Changeover
9.For the purposes of changeover, when not at the children’s school changeover take place at the Mother’s residence at the commencement of the Father’s time and at the Father’s residence at the conclusion unless otherwise agreed between the parties in writing.
AND THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
Information
10.Each party will keep the other informed of any significant illness or accident suffered by the children, or any of them, when in his or her care, and as soon as practicable, advise the other of the name and telephone number of each relevant treating medical practitioner or like professional, and authorise such treating medical practitioner or like professional to discuss the illness or accident, treatment and prognosis with the other party.
11.Each party will notify the other immediately if the children, or any of them, are hospitalised.
12.Each party is at liberty to obtain from the children’s schools copies of the following documents:
(a)School newsletters.
(b)Copies of the children’s school reports.
(c)Order forms for the children’s school photos.
(d)Notices of school functions such as parent teacher interviews, concerts, fetes and sports days.
13.Each party is at liberty to attend any of the children’s school and extra-curricular functions (such as parent-teacher nights, school sports days, drama evenings, music concerts and fetes) at which parents are usually in attendance.
14.Each party will keep the other advised of their residential address and mobile telephone number and advise the other party of any change within 24 hours.
Non-denigration
15.That each of the parties, their servants and agents be hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and
(b)discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children (or any of them) and from permitting any other person to do so.
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
Procedural
16.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the children attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 3 April 2023 and that the family report address:
(a)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the children and upon the children’s relationship with the Mother if the Court made orders as sought by the Father;
(d)the impact upon the children and upon children’s relationship with the Father if the Court made orders as sought by the Mother;
(e)the impact of the Mother’s relocation to Town C;
(f)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the children.
17.Not later than 4.00 pm on 22 November 2022 the parties must provide their contact telephone numbers and email addresses to [email protected].
18.Each party will do all things necessary to ensure the children attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
19.The parties and the children shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
20.The Family Consultant shall be at liberty to inspect any material filed by the parties.
21.Leave is granted to each of the parties and the Independent Children’s Lawyer to provide a copy of the Family Report to a convener of any legal dispute resolution conference.
22.The proceedings be adjourned to 30 May 2023 at 10.00am for Final Hearing in the May 2023 City B Circuit sittings of the Federal Circuit and Family Court of Australia.
23.The matter may be listed for a compliance mention prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.
24.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
25.The Applicant file and serve any Amended Application and a trial affidavit and, if relevant, an updated Financial Statement, upon which she/he seeks to rely by no later than 28 days prior to the Final Hearing.
26.The Respondent file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which she/he seeks to rely by no later than 21 days prior to the Final Hearing and the obligation to file same applies whether or not the Applicant has filed trial material in accordance with the previous order.
27.The Independent Children's Lawyer file and serve any material on which they seek to rely by no later than 14 days prior to the Final Hearing.
28.Each of the parties be at liberty to file a short affidavit in reply by no later than 14 days prior to the Final Hearing.
29.Each party file and serve a case outline no later than 7 days prior to the Final Hearing and provide a copy in Word format to the associate with the case outline to include:
(a)A list of the application/response and all affidavits to be relied upon including the dates of filing;
(b)A brief chronology of relevant events;
(c)A precise minute of the orders the party is seeking; and
(d)A list of authorities to be relied upon, if any.
30.The Respondent’s application for costs is dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Newell & Warwick has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR RES TEMPORE JUDGMENT
These are the settled reasons of a res tempore judgment pursuant to s 69ZL of the Family Law Act 1975 (Cth) (‘the Act’).
The decision I must make on this emergency interim hearing is the living arrangements for the children of these proceedings, aged 13 years old (‘child X’), aged 10 years old (‘child Y’) and aged 9 years old (‘Z’) (collectively, ‘the children’).
This matter came before me on Monday, 14 November 2022, on a day when there were 19 matters listed. The applicant father (‘the Father’) is represented by Mr Carne of counsel, and the respondent mother (‘the Mother’) is represented by Ms Malik of counsel.
I am indebted to counsel and the parties for the efficient way that they were able to conduct their hearing, covering a wide range of matters, on the afternoon of Monday, 14 November 2022. When submissions concluded close to when the Court would adjourn, I adjourned the matter for judgment until this morning, at 9:15am, in the circumstances where I have only a dozen or so matters listed for hearing, most of them final hearings. Hence, this is what is known as a res tempore judgement, that is a judgement delivered shortly after the matter concluded in oral reasons, but not ex tempore, that is, immediately after.
The Father sought the following orders:
Urgent Interim Orders
1.That all times be abridged to allow this application to be heard by this Honourable Court this day as a matter of urgency.
2.That the Father shall have leave to proceed with his application for interim orders this day on an ex-parte basis.
3.That pursuant to Section 60I(9)(b) and (d) of the Family Law Act 1975 the Father be permitted to proceed with this application for parenting orders without providing this Honourable Court with a certificate pursuant to section 60I(8) of the Family Law Act 1975.
Recovery Order
4.If the children… have not been returned to the Father at the date of the first return of this application, a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)To find and recover the children…
(b)To deliver the said children to the Father at [D Street, Town E], in the State of Victoria, or such other place as the Father and the person effecting such recovery agree to be appropriate; and
(c)To stop and search any vehicle, vessel, or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child, may be found.
5.A copy of these orders be faxed immediately to the Australian Federal Police Operations Coordination Centre by the Melbourne Registry of the Federal Circuit and Family Court of Australia.
6.[[X]] be forthwith re-enrolled at [secondary school A]… and [[Y]] and [[Z]] be forthwith reenrolled at [primary school A].
Parental Responsibility
7.The parties have equal shared parental responsibility for the children…
Care Arrangements
8.In the event that the Mother does not return to the [City B] area with the children, the children live with the Father.
9.Until further order, the children spend time with the Mother, during the school term, as follows:
(a) Each alternate weekend, from 5:00pm Friday until 5:00pm Sunday;
(b)Each Wednesday evening from 5:00pm to 8:00pm, such time to occur in the [City B] area; and
(c) Such other times as may be agreed between the parties in writing.
…
The Mother sought the following orders:
1. The children live with the Respondent mother.
2.The children [Y] and [Z] spend time with the Applicant father alternate weekends from 4.00pm Friday to Sunday 4.00pm.
3.The child [[X]] spend time with the Applicant father alternate weekends from 4.00pm Friday to Sunday 4.00pm, subject to his wishes.
4.That changeover shall take place:
(a)By the Applicant father picking the children up at [F Street, Town G] on a Friday; and
(b)By the Respondent mother picking the children [Y] and [Z] up from the father at his residence at [H Street, Town J] on a Sunday.
The Father is 52 years old. He is a factory worker. The Mother is 45 years old, and as I understand it works as a transport worker in or around City B area. Until late-September or early-October, the children were enrolled and attending at schools in the City B area.
The parties had commenced cohabitation in or about early 2009 and separated in early 2016. At that time, the parties had the maturity to negotiate between themselves arrangements whereby the children lived with the Mother and spent regular and substantial time with the Father.
These proceedings were issued by the Father on 28 October 2022, when he sought orders that require the Mother to relocate back to the City B area. The Mother had, on or about late-September or early-October 2022, moved with the children from the City B area to Town G. The events that led up to that commenced in May 2022, and it is common ground that in May 2022 the Mother told the Father that the lease upon the rented accommodation where she lived would expire. There could be no doubt about that expiration, as attached to the Mother’s Affidavit filed 11 November 2022 (‘the Mother’s Affidavit’) is the notice to vacate coming from the landlord.
The Mother’s case is that she simply had to move out of the property by 3 October 2022, and that she was unable to find anywhere to relocate to within the City B area. The Mother’s case is that the time she proposes is more or less a similar amount of time that the Father had enjoyed with the children when they lived closer together. She says that it is in the children’s interest that the children continue to live with her but now in Town G, and that the change of school was necessary in any event. The Mother had some criticisms of the prior school.
The Father’s case was that the Mother had, in the face of his known opposition, unilaterally relocated from the place where the children could enjoy very frequent contact with him to a place whereby the reality was that the parents would only be able to facilitate alternate weekend and school holiday time. The opposition was expressed in letters from his solicitors, in the chain of correspondence which commenced on or about 20 September 2022. The consequences of the move being that the children would live with one parent, and the other would only be able to enjoy alternate weekend time appeared to be common ground. The Father’s case was that the unilateral move had boldness to it because it was in the face of the strong and unequivocal opposition by the Father over quite a bit of time.
The Father pointed out that the unilateral nature of the move in the face of a settled time regime was such that the Court would usually set its face against such moves. He relied upon section 60CC(2) of the Act, that is, the promotion of a meaningful relationship with the child’s parents as a primary consideration; and section 60CC(3)(i), the attitude to the responsibility of parenthood. It is implicit in the Father’s counsel’s submissions that the promotion of the other parent’s relationship was such an integral aspect of the responsibility of parenthood, that to unilaterally act as the Mother had was entirely contrary to that responsibility. He said that the ordinary course of events of such decisions is that the unilaterally relocating parent was compelled to relocate the children’s residence back, and that in any event, if the parent chose not to themselves relocate back, the children would live with the other parent.
There was a dispute between the parents as to just what were the settled arrangements were prior to the Mother’s relocating. In the Father’s Affidavit filed 28 October 2022, the Father says:
28.Following separation, [the Mother] and I agreed that the children would live with her and spend time with me as follows:
(a)Each school night, from the conclusion of school until approximately 7:00pm;
(b)Each alternate weekend, from the conclusion of school on Friday until 4:00pm on Sunday;
(c) For two weeks of the school holidays each year; and
(d) On special occasions.
29.I have been responsible for picking up the children from school each afternoon and delivering them to [the Mother’s] house. I start work early, between 4:00am and 6:00am, and finish work at 3:00pm, which allows me to collect the children each school day. I take the children to their respective extra-curricular activities after school.
…
33.The above parenting arrangements were in place for 6 years and the children have been happy and well-settled in their routines. The children have benefited from having regular contact and a strong bond with both [the Mother] and I.
35.On 18 August 2022, [the Mother] told me that she intended to relocate with the children to [[Town G]] to live with her new boyfriend, [[Mr K]], and that she intended to move during the September/October school holidays at the conclusion of Term 3.
In the Mother’s Affidavit, the Mother says:
63.Following the relocation to [[Town G]] on 28 September 2022 there have been minimal changes to the time that [the Father] spends with the children (save for [[X]] who refuses to spend time with him).
64. The children still spend alternate weekends with [the Father].
65.[The Father] picks the children up from my property in [[Town G]] on Friday 4.30pm and I pick them up from his sister's property on Sunday at approximately 4.00pm.
66.In the last month, [[X]] has refused to spend time with [the Father]. When [the Father] has come to pick up the children from [[Town G]], [[X]] has refused to go with [the Father] and states that he wants to stay with me permanently. I have encouraged [[X]] to spend time with [the Father], but he has refused to spend time with him.
…
78.Paragraph 28A is disputed. There was never an agreement that he spends time with the children every school night from 3.20pm to 7.00pm. The agreement was that the children live with me and spend alternate weekends with [the Father] as well as special events. [The Father] was also to spend 2 weeks with the children in the school holidays each year.
79. Paragraph 29 is disputed.
80.Paragraph 33 is disputed. The arrangements contained in [the Father’s] affidavit have not been in place for 6 years. [The Father] would assist with travel arrangements were needed in the last 12 months. He didn't spend each school day from 3.20pm to 7.00pm with the children. It is disputed the children are happy with the arrangements which has been evidenced by the fact that [[X]] refuses to spend any time with his father.
…
93.My proposed orders to not set to reduce the time [the Father] spends with the children. I still wish for him to continue spending alternate weekends with the children and 2 weeks in the school holidays.
The key dispute between the parents as to the Father’s regime of time with the children on the papers related to the issue of the Father’s time with the children each school day. He would see them from after school until 7:00pm. The Mother’s affidavit on its face would show and assert there was not any such after school regime.
To the credit of the Mother, she provided instructions to her counsel, relayed to me by her counsel consistent with her duty to the Court, informing me of a significant omission from the Mother’s affidavit. The Mother’s position became that in 2022 the practice was that on each school day the Father would collect the two primary school children from school and return them to the Mother’s home. She says not at 7.00pm, but closer to 4.00pm. We are now in November 2022.
Expressly in the Father’s case was that the Mother’s assertions of being unable to find accommodation in the City B area should be treated with great circumspection. It was asserted that she had relocated for the purpose of pursuing her personal relationship with her partner of some months. It is common ground and not disputed that the partner and his family at all material times have lived in Town G.
I will apply all of Part VII of the Act, and I will not recite the sections. In this interim hearing I also must apply the pathway of Goode & Goode [2006] FamCA 1346. The pathway is set out as follows;
72.In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children's lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
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.
Hence, I am unable on this interim hearing to resolve the dispute and make a factual finding about whether the Mother’s relocation to Town G was in fact motivated mainly by pursuit of a new relationship, rather than the fact of the difficulty of continuing accommodation.
I raised with the parties that I would take into account in the circumstances of the current or recent floods in the City B area, in which the parties live, pursuant to section 144 of the Evidence Act 1995 (Cth). I take into account the fact that many, many houses in the immediate area were rendered uninhabitable in the floods, and the inevitable consequence is that there would now be real difficulty in obtaining rental accommodation in this area. There is substantial evidence in the Mother’s affidavit that she has sought to obtain accommodation in the area where she previously lived. Annexed to the Mother’s application is evidence corroborating applications for accommodation at various locations.
The Mother’s failure to acknowledge in her affidavit the frequency of the Father’s time was a serious omission from that affidavit, and a serious misstatement of the frequency of the Father’s regular time with the children. It is the quality of time and the way the children react or deal with the parent in the everyday minutia of life, like being picked up from school, which is important, as opposed to the number of hours.
The Father’s case included that the children were well-settled in their school environment, their sports or extracurricular activities’ environments, their community and in the parenting environments. However, the Father’s case shows little insight into the predicament the Mother faced as that lease ended in the current rental market. The most significant floods commenced on or about the week before 22 October 2022. There had been earlier flooding in this area throughout 2022. The fact was that the Mother’s accommodation had come to an end. It appears that the Mother has been applying for accommodation in this area. The Father’s case is that she could have and should have got accommodation closer to the children’s existing schools, and that her choice of accommodation coinciding with the advancement of her relationship seriously undermines her case.
The Mother’s case, in my view, shows little insight into the predicament for the children and the Father of the radical change of the relocation to Town G. It changes their schools and their sporting activities. Very significantly, it means that apart from the Father being able to have the continuation of alternate weekend time, the two younger children would no longer have the benefit of the Father’s involvement in their lives each school day. Whether that time was from after school until 4.00pm or later until 7.00pm is an interesting dispute, but it is not to the point. It is a significant interruption to the Father’s time with the children, or rather, the children’s time and involvement in the Father’s life.
The context of the text messages exchanged between the Father and the Mother, that commence on or about 24 August 2022, demonstrate on the Mother’s part a presumed entitlement to dictate to the Father the children’s arrangements. Interestingly, apart from that, those text messages indicate that the Father was also significantly involved in the day-to-day nuts and bolts work and planning of the children’s sporting activities to a greater extent than the Mother’s affidavit recognises. Hopefully, one day these parents will be able to get back to that very practical and common sense and respectful organisation of the children’s activities that they had previously before this dispute.
Turning then to the matters that I must identify under the legislation. I am prohibited from making a factual finding that the Mother has acted with the motivation alleged. However, I do note that the Mother’s motivation and difficulty in obtaining accommodation does not appear to be fanciful or contrived. The Mother’s position was that it was by luck that her partner was able to secure accommodation for himself and herself and the children in Town G. Hence, I cannot and will not make a finding in regard to that.
The parties both seek that the parents have equal shared parental responsibility for the children, and hence I must consider in accordance with section 65DAA of the Act, the issue of equal time. Neither parent seeks equal time, nor would it be practical in the current circumstances. I must consider, pursuant to section 65DAA, significant and substantial time as defined by that section. In the circumstances where the Mother lives in Town G, and has done so for at least a short period, that is not practical.
Legal authorities
I will now address what the authorities say. Helpfully, counsel for the Father referred me to my decision of Chetti & Bhavalakar [2022] FedCFamC2F 194. I recite and apply the authorities referred to in that decision below.
I am assisted by the discussion of competing interests where relocation is sought on an interim basis by the Full Court decision of Franklyn & Franklyn [2019] FamCAFC 256 (‘Franklyn’). I recite the following paragraphs from Franklyn:
[26]Before dealing with these grounds of appeal individually, it is worthwhile recalling the statements of principle proscribing the power to make orders which are, in effect, mandatory injunctions, forcing parents to live in places against their will so as to fulfil the statutory mandate to accord paramount importance to the children's best interests.
[27]There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children's ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent's move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
[28]While the children's interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U [2002] HCA 36; (2002) 211 CLR 238 ("U v U") at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) [2007] FamCA 1365; (2007) FLC 93-350; Zanda & Zanda [2014] FamCAFC 173; (2014) FLC 93-607 at [132]- [136]). Only when the children's welfare would be adversely affected must a parent's right to freedom of mobility defer to the paramount consideration of the children's best interests (see U v U at 262).
The High Court observed at common law individuals may move about as they see fit but that freedom is subject to the laws of the land. Hence, parents enjoy as much freedom to live where they wish as is compatible with their obligations in regard to their child or children: I will refer to the observations of Kirby J at [191] of AMS v AIF (1999) 199 CLR 160:
[191]First, to impose upon a custodial (or residence) parent the obligation to demonstrate "compelling reasons" to justify relocation of that parent's residence, with consequent relocation of the residence of the child, is not warranted either by the statutory instructions to regard as paramount the welfare of the child or by the practicalities affecting parents. Parents enjoy as much freedom as is compatible with their obligations with regard to the child. The freedom continues, including with respect to their entitlement to live where they choose. At least in the case of a proposed relocation within Australia, the need to demonstrate "compelling reasons" imposes on a custodial parent an unreasonable inhibition. It effectively ties that parent to an obligation of physical proximity to a person with whom, by definition, the personal relationship which gave rise to the birth of the child has finished or at least significantly altered.
(emphasis added)
At paragraph 14 and 15 of Keavney & Mohlis [2021] FCCA 396 I observed:
14Freedom of movement was recently raised in Gerner v Victoria [2020] HCA 48 (‘Gerner’), a case concerning the validity of the Victorian “lockdown” regulations authorised by Victorian public health legislation. There the High Court dismissed the plaintiff's case that there was an implied freedom of movement in the Australian Constitution. At [10] the High Court observed:
At common law individuals may move about as they see fit. But that freedom is subject to the laws of the land.
15Hence parents enjoy as much freedom to live where they wish as is compatible with their obligations with regard to their child or children and the laws of the land, see Kirby J in AMS v AIF, cited in Franklyn, at [191]. The constitutional law principles discussed in Gerner do not conflict with the principles summarised in Franklyn. In any event I am bound by Franklyn.
One matter that is of significance to me is that one of the issues in the well-known authority of Morgan & Miles (2007) FLC ¶93-343 (‘Morgan & Miles’) was that the unilateral relocation was contrary to section 65DAC which provides:
Section 65DAC Effect of parenting order that provides for shared parental responsibility
1. This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
2. The order is taken to require the decision to be made jointly by those persons.
Note:Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
3. The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
4.To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Section 65DAC only applies where there is an order. It is anomalous, in my view, to find that it was intended by Parliament that the obligation to confer only arose where there was in place an order. Section 65B(2), in particular (c), of the Act sets out the obligations on parents to agree. This has more weight and force and effect where there is a long-settled arrangement.
In Morgan & Miles, Boland J, sitting as the Full Court made some observations about unilateral relocations and interim hearings. Boland J observed:
[55]It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court's discretion in determining a child's best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.
…
[74]The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
[75]It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significantly more difficult for that child to spend time with the “left behind” parent.
[77]The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the "left behind" parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.
I also refer to Stringer & Nissen (No. 2) (2019) FLC ¶93-922 and I recite [26] where it was observed that the Court's function is not fettered by unilateral relocation:
…while it is undoubted that the Court's function is not fettered by a unilateral relocation by a parent, the determination of whether such a move is in a child's best interests involves a careful consideration of all of the factors relevant to that determination (see Morgan & Miles… at [55])
The Mother wishes to relocate to Town G. She is ordinarily entitled to live where she wants to live. It is a serious thing that someone should be by court order prevented from living where they want to live. There is no question that I have the jurisdiction to do so. Sampson & Hartnett (No. 10) [2007] FamCA 1365 (‘Sampson & Harnett’) at [75] states the following:
[75]To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
(see [75] of Sampson & Harnett)
…
[37]In Sampson this Court thus made it plain that “[t]he proper exercise of such a power is likely to be rare” and orders made pursuant to an exercise of that discretion would be “…at the extreme end of the discretionary range…” (Sampson at [58] and [83]). It follows that there should exist “rare” or “extreme” factors that warrant the Court exercising its discretion to make “coercive” orders requiring a parent to relocate so as to continue to be the primary carer of their child/ children (Sampson at [17]).
(see [37] of Adamson & Adamson (2014) FLC ¶93-622)
In Oswald & Karrington (2016) FLC ¶93-726 the Full Court observed:
[16]It may be accepted, as it was in this case, that the Court has power to make a coercive order. Importantly though, it is well established that the proper exercise of that power is “at the extreme end of the discretionary range” and there should exist “rare” or “extreme” factors that warrant the Court exercising its discretion to make a coercive order requiring a parent to relocate so as to continue to perform the role of primary caregiver of children.
[17]Consequently, as emphasised by the Full Court in D and SV and by the Full Court in Sampson and Hartnett (No 10) (supra), there is an imperative for the Court to explore and consider alternatives to restricting freedom of movement, particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary caregiver undertaking that role in a place not of that parent’s choosing.
(citations omitted)
In Wilburn & Wilburn (2020) FLC ¶93-979 at [51] Strickland J sitting as the Full Court observed:
[51]… There remains a clear difference as to how a court addresses a requirement to remain in an area, as opposed to a requirement to actually pack up and move.
However, I simply cannot find that it is practical in the circumstances to proceed on the basis that the Mother either has or can obtain accommodation in the area where she was.
I also must take into account the issue of the change of school. As set out in the Father’s case, the Mother’s unilateral decision to change the children’s schools is contrary to the shared parenting responsibility that the parents enjoyed. They did not have equal shared parental responsibility, but they had shared parental responsibility. The issue is, if I change the children’s school back to where it was after a short period of time, and then it might be changed back again to where it currently is on the final hearing. That zigzagging between schools should be avoided. I do not place any weight on the Mother’s allegations that it is a good thing to change the school because of bullying, or that the new school is a better school. I do not place any weight on those allegations.
In the circumstances where the children have lived the majority of lives with their Mother, albeit with their Father significantly involved, I find that it is not in the children’s best interests to have that radically changed on an interim hearing so that they now reside with their Father. I should add that upon my enquiry, the Mother’s position was that if the children were ordered to reside in the City B area, effectively with the Father, the Mother’s position was that she would not immediately relocate back to City B. At least part of the reason behind that position was that she could not, and that she simply did not have accommodation.
In all of those circumstances, I find that the orders as pressed by the Mother are in the children’s best interests. This is notwithstanding the interruption of the otherwise frequent time that that would have in the children’s lives, given the Father’s significant previous involvement.
Those are my reasons.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Res Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 21 December 2022
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