NICHOLSON & DURHAM

[2015] FCCA 2026

FEDERAL CIRCUIT COURT OF AUSTRALIA

NICHOLSON & DURHAM [2015] FCCA 2026

Catchwords:
FAMILY LAW – Parenting – relocation by mother with young child – considerable distance between the parties and consequential effects upon capacity to facilitate relationship with both parents – whether child should be ordered to return to original locality – whether mother should be ordered pursuant to a coercive order to return to the original locality – consideration of section 65DAA and to practicability of travel of a significant and continuing nature – consideration of section 65DAA and to whether such travel and separation from one or other parent was in the best interests of the child – whether rare and exceptional circumstances existed such as to justify the exercise of discretion to make a coercive order requiring the mother to return with the child to the original locality – determination in all the circumstances that a coercive order should be made.

Legislation: 
Family Law Act 1975 (Cth), ss.60B(1) and (2), 60CC(2), (2A) and (3), 65DAA(1)

Adamson & Adamson [2014] FamCAFC 232
C & S [1998] FamCA 66
D and SV (2003) FamCA 113; (2003) FLC 93-139
Ember & Assadi [2013] FamCAFC 107
Goode & Goode [2006] FLC 93-286
Morgan & Miles [2007] FLC 93-343
MRR & GR [2010] FLC 93-424
Nada & Nettle [2014] FamCAFC 123
Sampson & Harnett (No.10) (2007) FLC 93-350

Applicant: MR NICHOLSON

Respondent: MS DURHAM

File Number: TVC 94 of 2015

Judgment of: Judge Coker

Hearing date: 19 May 2015

Date of Last Submission: 19 May 2015

Delivered at: Townsville

Delivered on: 28 July 2015

REPRESENTATION

Counsel for the Applicant: Ms J Mayes

Solicitors for the Applicant: Beckey Knight & Elliott

Counsel for the Respondent: Mr T Betts

Solicitors for the Respondent: McKays Family Law

ORDERS

1. That the Mother return to (omitted) with the child, X born (omitted) 2013, within 14 days of the date of this Order.

2. That the Mother and the Father have equal shared parental responsibility for the child’s long term care, welfare and development, including but not limited to:

   (a)The child’s education (both current and future);

   (b)The child’s religious and cultural upbringing;

   (c)The child’s health;

   (d)The child’s name;

   (e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.

3. That the parents in the exercise of their equal shared parental responsibility, consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)They shall inform the other parent about the decision to be made;

   (b)They shall consult with each other on terms that they agree; and

   (c)They shall make a genuine effort to come to a joint decision.

4. That each parent have sole responsibility for making decisions about the day to day care, welfare and development of the child during periods when the child is living with them (except as otherwise provided for in this order).

5. That without limiting the parental responsibility of either parent pursuant to these Orders, each parent shall keep the other informed of and shall properly consult with the other with respect to any significant parenting issues affecting the child. For the purpose of this Order, a “parenting issue” is:

   (a)Any medical or health matter concerning the child;

   (b)Any medical or health matter affecting either parent which may affect the ability of that parent to care for the child;

   (c)Matters relating to the education of the child, including but not limited to, the choice of school and curriculum and the provision to the other parent of all school reports, options to purchase school photographs and all communication from the child’s school other than with respect to routine or administrative matters;

   (d)Matters concerning the social development and sporting activities of the child;

   (e)Any change of place of domicile or telephone number of either parent, within twenty-four (24) hours of such change; and

   (f)Generally, any matter regarding the child in respect of which a parent should be informed of or consulted with having regard to the provisions of the Family Law Act 1975.

6. That the child live with the Mother.

7. That the child spend time with the Father at all reasonable times as may be agreed between the parties, and failing agreement as follows:

   (a)Up to and including, 1 September 2015:

   (i)From 9:00am on the first day to 5:00pm on the third day; and

   (ii)From 9:00am on the fourth day until 5:00pm on the seventh day of the Father’s seven day off roster.

   (b)From, 1 September 2015, that the child live with the Father and the Mother for an equal period of time on a weekly basis, from 9:00am on the first day to 5:00pm on the seventh day of the Father’s seven day off roster.

8. That pursuant to Section 68L(2) of the Family Law Act 1975, the child,  X born (omitted) 2013, be independently represented and that Legal Aid Queensland be requested to arrange such representation. 

9. That each party comply with any lawful direction of the Independent Children’s Lawyer in relation to the preparation of any report or assessment.

10. That the application be listed for 2 days hearing on a date to be fixed in (omitted).

11. That the Applicant file and serve any affidavits of evidence in chief to be relied upon no less than 35 days prior to the date set for trial.

12. That the Respondent file and serve any affidavits of evidence in chief to be relied upon no less than 25 prior to the date set for trial.

13. That the Independent Children’s Lawyer file and serve any affidavits or reports no less than 18 days prior to the date set for trial.

14. That no party has leave to rely upon any material filed outside the time provided within these directions other than with leave of the Court.

15. That the Applicant pay the setting down fee and daily hearing fee or apply to have the fees reduced no less than 14 days prior to the date set for trial.

16. That each party file and serve on each other party 3 days prior to the date set for hearing, a case outline setting out:

    (a)the final orders sought;

    (b)a chronology;

    (c)a list of documents intended to be relied upon at trial; and

    (d)statement of evidence which they say supports the principles contained in section 60CC.

17. That the application be listed for a compliance check on a date to be fixed in Townsville, with leave being granted to the parties to attend by way of telephone upon the giving of 5 days notice of a telephone number on which they can be contacted.

IT IS NOTED that publication of this judgment under the pseudonym Nicholson & Durham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT TOWNSVILLE

TVC 94 of 2015

MR NICHOLSON

Applicant

And

MS DURHAM

Respondent

REASONS FOR JUDGMENT

INTRODUCTION:

1. Rarely have I seen proceedings in this Court in which there have been more twists and turns than arise in the application that I am now asked to deal with.  I say that in the sense that the first document filed in the proceedings, the initiating application brought by Mr Nicholson whom I shall refer to as the father, sought what I might describe as fairly standard orders, in relation to the parenting of the child, X.  X, born (omitted) 2013 and, therefore at this time, just a little over two years but at the time of bringing the application just short of two years of age, is the child of the father and X, whom I shall refer to as the mother. 

APPLICATIONS:

1. The original application sought final and interim orders and, in particular, the interim orders could perhaps be summarised as follows:

   ·that the mother return the child X to (omitted);

   ·that if the mother fails to do so that a recovery order issue;

   ·that the parties have equal shared parental responsibility for the child's long-term care, welfare and development;

   ·that the child, if the mother returns to (omitted), live with the mother and the father spend time with the child of a particularised nature;

   ·that in the event the mother does not return to (omitted) the child live with the father and spend time with the mother as may be agreed.

2. The mother's response was filed on 12 March 2015, just prior to the matter being due to come before the Court.  Her response was again fairly standard.  It sought final and interim orders and on an interim basis in particular proposed that the recovery order application be dismissed, that the proceedings be transferred to the Brisbane registry of the Court, that the mother be permitted to remain living in Brisbane with the child and that the parties have equal shared parental responsibility for decisions to be made in relation to the child.

3. Additionally, it was proposed that if the proceedings were transferred to Brisbane, that the child live with the mother and spend time and communicate with the father at all such times as may be agreed between the parties, but then went on to particularise what those arrangements might be.

   Alternatively it was proposed that if the recovery order were granted, that the child live with the mother in (omitted) that the mother have permission to visit the (omitted) for a period of no longer than 14 consecutive days, upon appropriate notice being given to the father and that the father spend time and communicate with the child at all reasonable times as may be agreed but, then also went on to particularise the arrangements for time with the father.

4. Those proposals, initially put by both parents, were arrangements which reflected what I might call the general position taken in relation to proceedings where one party or the other is suggested to have unilaterally relocated and the father, as is the case here, seeks the return of the child and hopefully the return of the mother, for a shared parenting type arrangement. However, the father alternatively proposed that if the mother were not to return, then that the child live with him.

5. The mother's position was to say that she does not wish to return and argued that that was in the best interests of the child.  But, if the recovery order were granted, then she would return and the child should live with her and spend time with the father.

VARIATIONS TO APPLICATIONS:

1. The application was returnable on 17 March 2015 and at that time orders in the short term were made with regard to the parents having equal shared parental responsibility, the child living with the mother in the southeast corner of the state and the child spending time with the father, with arrangements for the mother to travel with the child to (omitted) on occasion and on other occasions for the father to travel to the (omitted) or Brisbane to spend time with the child. 

2. Thereafter, the matter was adjourned for a more complete hearing in Mackay on 19 May 2015. It was following the making of those interim interim type orders that the twists and turns to which I have previously made reference arose. 

3. On 12 May 2015, in other words, just a week prior to the further hearing being listed to proceed, the mother filed an amended response.  She amended both the final and interim orders and, significantly, sought orders which were considerably different to those that were proposed in the original response. 

4. She still sought orders with respect to her being permitted to relocate with the child to Brisbane and for the child to live with her. She also still proposed that there should be arrangements made with regard to equal shared parental responsibility vesting in she and the father. However she then went on to propose alternative arrangements, dependent upon whether leave was granted or not granted for her to relocate with the child. 

5. Her proposals in respect of the child spending time with the father, if she were able to relocate were detailed in orders 8 through 15 of the amended response and were in these terms:

   8)The parties will actively facilitate the relationship between the absent parent and the child, for example, by encouraging the child to communicate with the absent parent by whatever means nominated by the absent parent.

   9)That the child spend time and communicate with the Father at all such times as is agreed between the parties, and in particular, as follows:

   (a)From 19 May 2015 to 17 September 2015:

   (i)Every second Saturday from 9:00am until 5:00pm; and

   (ii)Every second Sunday from 9:00am until 5:00pm.

   (b)From 18 September 2015 to 17 May 2016:

   (i)Every second Friday from 11:00am until 5:30pm;

   (ii)Every second Saturday from 9:00am until 5:00pm the following Sunday.

   (c)From 18 May 2016, onwards:

   (i)Every second Friday from 11:00am until 5:30pm;

   (ii)For one half of each school holiday period, being the first half in even numbered years and the second half in odd numbered years.

   10)The time that the child is to spend with the Father as outlined in clause 9 herein is to take place at (omitted), Brisbane or the (omitted) as nominated by the Father, however the child will not make more than one (1) return trip to (omitted) per month.

   11)Upon the child reaching the age of two (2) years, the Mother shall facilitate Skype between the child and the Father at all reasonable times as agreed between the parties and failing agreement, each Sunday, Wednesday and Sunday between the hours of 5:00pm and 5:30pm with the Mother to initiate the call.

   12)On any occasion while the child is spending time with the Father, the Father shall facilitate Skype between the child and the Mother at all reasonable times as agreed between the parties and failing agreement, each Monday, Wednesday and Sunday between the hours of 5:00pm and 5:30pm with the Father to initiate the call.

   13)The child will spend time with the parents on Easter Sunday and Christmas Day as follows:

   (a)With the Mother:

   (i)From 7:00am to 1:00pm in even numbered years; and

   (ii)From 1:00pm to 6:30pm in odd numbered years.

   (b)With the Father:

   (i)From 7:00am to 1:00pm in odd numbered years; and

   (ii)From 1:00pm to 6:30pm in even numbered years.

   14)In relation to the child’s birthday:

   (a)In the event that the child’s birthday falls on a school day, the Father will spend time with the child from after school until 5:30pm, with the Father to collect the child from school at the commencement of this time and returning the child to the Mother’s residence at the conclusion of this time;

   (b)In the event that the child’s birthday falls on a non-school day:

   (i)When the child would not otherwise be with the Father, then the Father will spend time with the child from 9:00am until 1:00pm or 1:00pm until 5:30pm, as agreed between the parties or failing agreement, as nominated by the Mother;

   (ii)When the child would not otherwise be with the Mother, then the Mother will spend time with the child from 9:00am until 1:00pm or 1:00pm until 5:30pm as agreed between the parties, or failing agreement, as nominated by the Mother.

   15)For the purpose of spending time with the child as outlined in these Orders:

   (a)The Mother will meet the costs associated with the one (1) return airfare from (omitted) to Brisbane per month on the basis that these flight expenses do not exceed one hundred and ninety dollars ($190.00) and that the invoice is provided to the Mother four (4) weeks prior to the anticipated travel time;

   (b)The Father will meet all other costs associated with the travel pursuant to these orders;

   (c)Changeover is to take place at a local McDonald’s Restaurant to be determined by agreement in writing between the parties;

   (d)If the time is to be spent on the (omitted) the Mother will meet the full costs of transporting the child to and from the (omitted). 

6. In the amended response, the Mother proposed a very different alternative arrangement if the child were to be ordered to return to (omitted).  Where she had originally proposed that she would return with the child and that the child should live with her with opportunities for travel to the (omitted) and Brisbane, she now suggested that the child should live with the father and that she should have the opportunity to spend time with the child for one weekend per month from 10:00am Saturday until 5:00pm on the following Monday and then went on to detail proposals with regard to special days and the like. 

7. The alternative orders were detailed in orders 16 through 19 of the amended response and were in these terms:

   16)That the child live with the Father in (omitted)

   17)That the child spend time with the Mother as agreed between the parties and failing agreement, as follows:

   (a)For one (1) weekend per month from 10:00am Saturday until 5:00pm the following Monday;

   (b)Once the child commences Kindergarten, for one (1) weekend per month from the conclusion of Kindergarten on Friday until 5:00pm the following Sunday;

   (c)For two (2) periods of two (2) week blocks per year during the school holidays on the giving of 1 months written notice of that time;

   (d)From 10:00am until 5:00pm on the following days:

   (i)On Mother’s Day, the child’s birthday, the Mother’s birthday, Easter Sunday and Christmas Day in even numbered years;

   (ii)For a period of no less than three (3) hours on Mother’s Day, the child’s birthday, the Mother’s birthday, Easter Sunday and Christmas Day in odd numbered years; and

   (iii)At any time that the Father brings the child to Brisbane or the (omitted) for at least fifty percent (50%) of that time.

   (e)The time will take place at (omitted), Brisbane or the (omitted) as nominated by the Mother, however the child will not make more than one (1) return trip to (omitted) per month.

   18)The Father shall facilitate Skype between the child and the Mother at all reasonable times as agreed between the parties and failing agreement, each Monday, Wednesday and Sunday between the hours of 5:00pm and 5:30pm with the Father to initiate the call.

   19)The Father is unable to relocate with the child from (omitted) without the Mother’s written consent or Order of the Court.

8. It is noteworthy and it was emphasised by counsel for the father that the mother's proposals with regard to the two alternatives were radically different.  In the first instance, the mother's proposal with regard to the father spending time with the child if the child were to live with her in Brisbane, was for time to be spent with the father, not to include overnight time until September of 2015 and then for only one night per fortnight. 

9. From May 2016 it was proposed that there should be the opportunity for two nights per fortnight and for one half of school holidays, notwithstanding the fact that this little girl would only have just turned three and would therefore, not be in any regulated educational facility which would have school holiday periods. The mother in her material emphasised her concerns with respect to the child's primary attachment to her and the very real concerns that she said she had if there were separation from her. 

10. And yet, the alternative proposal was for the child to live with the father and in each month on an average of say, 30 days for the child to spend 28 of those days with the father and two days with her.  She did of course suggest other opportunities that might be available, but basically proposed that the vast majority of the time that the child would be in the care of one party or the other would be in the care of the father if the child were to return to (omitted) because the mother's position was simply to say that she would not return.

1. This led to the filing of an amended initiating application by the father on 19 May 2015, the day that the matter was heard.  The father's proposals in relation to both final and interim arrangements remained unchanged at least insofar as parental responsibility and issues of that nature were concerned.  But on an interim basis, rather than suggesting that the child should be returned to (omitted) and if the mother were not to return, then the child live with him, the father sought what was referred to in submissions as a “coercive order” which was to the following effect:

   1)That the Mother return to (omitted) with the child X born on (omitted) 2013 ("the child") within 14 days of the date of this order.

2. The father then proposed that upon the mother’s return to (omitted), that the child should live with the mother and that he should spend time with the child for a period of six weeks or so from Wednesday at 9 am to 5 pm on Friday and from 9 am on Saturday until 5 pm on Tuesday during his seven days rostered off. 

3. Additionally, he proposed that from 5 August 2015, that the child live with the father and the mother upon an equal shared care basis with rotation being from 9 am on the first day of the father's seven days rostered off to 5 pm on the seventh day of the father's rostered off period. It would not be an exactly equal shared care arrangement, because the child would be in the father's care for six nights and in the mother's care for eight nights during each 14 day period, but certainly the thrust of the application brought by the father was to the effect that there would be equal responsibilities afforded each parent in relation to the care of the child. 

ARGUMENT:

1. As I say, the twists and turns in the proceedings meant that the application was hotly contested.  I noted in submissions in relation to the matter that the position of the father and the mother as elaborated upon by their counsel, was one of continued antagonism.  I say that in the sense that the opening paragraph of the outline of submissions provided by the father was in these terms:

   It is undisputed that the mother in this matter moved from (omitted) to Brisbane in the face of the father's opposition.  The mother did not move out of necessity but because she chose to be closer to her family and because she did not wish to remain in (omitted).  The mother has acted selfishly and has not considered the child's right to a relationship with her father to be a priority or to impact upon her life choices.

2. Quite clearly, the father's instructions to his counsel were to go in "all guns blazing".  That position was reflected in the statements contained in paragraphs 5 and 7 of the short argument contained within the outline.  In paragraph 5, referring to the amended response, counsel submitted:

   This amended response is another example of the mother's attitude - "her way or the highway".  She does not intend her life to be disrupted by or for her child and would rather relinquish her care of the child than move back to (omitted) and enable the child to spend time with both parents.

3. At paragraph 7, it is further noted, after commenting upon the fact that the mother proposed no overnight time or alternatively, virtually the entirety of time to be spent with the father if the child were required to return, that there was "No credibility in the mother's position," and that "She is simply calling the Court's bluff." 

4. The stance of the father is perhaps understandable, particularly in light of the fact that counsel for the mother specifically opened his address acknowledging that the mother is a “unilateral relocator”, but notwithstanding that, the Court should not act in a way that was punitive of the mother but rather should ultimately consider “what was best for the child”.

5. As I have indicated, the stance of both parties, including the orders that they went on to propose in their amended response and amended application, gave rise to the difficult issues that are required to be considered in relation to this matter.  I acknowledge, however, that ultimately, what must be considered are arrangements which reflect the best interests of the child and, if necessary, that there be consideration of orders which may not reflect what either of the parties propose in relation to the proceedings.

THE LAW:

1. Counsel for both parties, understandably, referred me to a number of cases in relation to the issues of relocation.  Interestingly, whilst both were approaching the matter from an entirely different perspective to the other, both on occasions quoted paragraphs from decisions in exactly the same terms and then sought to draw their client's position out of the guidance provided through those cases.  In particular, I was referred to the judgment of Warnick J, as he then was, in C & S [1998] FamCA 66 where his Honour said:

   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 a 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.

2. Both counsel then noted the affirmation of that statement by Boland J, as she then was, sitting as the Full Court in Morgan & Miles [2007] FLC 93-343 where at paragraph 88 she said:

   It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report ... make it highly desirable that, except in cases of emergency, the arrangements which will be in the child's best interests should not be determined at 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.

3. As I say, counsel for both the father and the mother make reference to those statements and then go on, at least from the mother's perspective, to refer at length to the High Court decision in MRR & GR [2010] FLC 93-424, where specific guidance was provided by the High Court as to the procedural steps that must be followed by any court exercising jurisdiction under the Family Law Act, with regard to parenting of children, particularly with regard to the question of reasonable practicability in relation to what orders should be made. As their Honours said at paragraph 15 of MRR & GR:

   Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent.  That presumption in section 61DA(1) is not determinative of the questions arising under section 65DAA(1).  Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.  Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.

4. Their Honours then went on to comment upon the decision-making process and emphasised the importance of the matters of reasonable practicability in relation to any determination. 

5. Of course, what is now sought is an order which as I noted, was referred to as a coercive order.  In respect of the Court's power to deal with such matters I was referred understandably, to the decision of the Full Court of the Family Court in Adamson & Adamson [2014] FamCAFC 232, a decision of Ainslie-Wallace, Murphy and Kent JJ, delivered on 3 December 2014. There, under the heading “Power to Make Coercive Orders”, the Court dealt at some length with the basis upon which such an order can be made and said in paragraphs 35 through 41 the following:

   35. No ground of appeal asserts error in the trial judge’s finding that the Court has the power to make an order requiring the mother to move. Nor was it contended below that the Court lacked that power. His Honour found specifically that the power “is found in s65D and 68D of the Act” (Reasons, [39]). Authority supports his Honour’s conclusion (Sampson & Harnett (No. 10) (2007) FLC 93-350 (“Sampson”); Ember & Assadi [2013] FamCAFC 107 – although it might be noted that his Honour appears to adopt the reasoning in the letter case which holds, contrary to what is asserted in the former, that the court’s power lies not in s114 of the Act but in the sections to which his Honour referred. Again, no issue arises on this appeal in relation to any such distinction.

   36.Notwithstanding the assumption as to the Court’s power both at first instance and before this Court, it is important to the issues later to be discussed to observe that this Court said in Sampson:

   47.As indicated earlier, the purpose of a “coercive” order is more to create a situation, rather than choose between situations that already exist …

   …

   53.      In D and SV (2003) FamCA 113; (2003) FLC 93-139 the Full Court (Nicholson CJ, Kay and Monteith JJ) considered the degree to which, generally, alternatives to restricting freedom of movement ought be explored.  Their comments apply equally or more so to an order requiring relocation, contrary to a party’s proposals …

   …

   57.If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic.  The person being ordered not to move at least has chosen that location at some stage and for reasons which one assumes at least once existed.  This contrasts with a person who may not wish to go somewhere and therefore the order is much more of an imposition on that person’s freedom.

   58.However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child.  The proper exercise of such a power is likely to be rare, because:

   (i)the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and

   (ii)in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent.  If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous.  If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.

   (Emphasis added)

   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]).

   38.For reasons which will also be expanded upon below, it is important to observe that this Court also said in Sampson, when discussing the application of s 65DAA:

   74.As preface to this discussion, we make the following observations.  A person wishing to relocate will frequently be living in a settled environment awaiting the imprimatur of the court before moving.   In other circumstances, where a move has already been made, or is planned, settled arrangements in the new location will be in place or arranged. Where the court may be ordering the return of a parent to a location in which they have lived for some time, but from which they have moved without the consent of the other party and in circumstances in which existing orders or arrangements for the other parent to spend time with the children will be rendered ineffective, there will usually  be  arrangements  in the original location for the practicalities of life, such as accommodation, schooling and employment if relevant, which can readily be identified by the Court.  If there are not, that fact would normally be a relevant consideration.

   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.

   (Emphasis added)

   39.In MRR v GR (2010) 240 CLR 461, the High Court said at [13]:

   Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

   (Footnotes omitted)

   40. At [15] the High Court emphasised that s 65DAA is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time (or substantial and significant time) spent by the child with each parent; and that reality requires a practical assessment of the feasibility of an order for equal time (or an order for substantial and significant time).

   41.It can thus be seen that having the power to make a coercive order is one thing, but the circumstances which must exist to justify its legitimate exercise is quite another.

6. Their Honours, quite properly noted that whilst the Court has the power to make a coercive order, the circumstances which must exist to justify its legitimate exercise are very rare indeed.  Their Honours then went on to consider the findings of Judge Altobelli at first instance and then under the heading, “The Trial Judge's Application of Section 65DAA”, noted at paragraphs 66 through 68 the following:

   66.  These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of the child's best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.

   67.  Consequently, whilst the Court is not bound by the proposals advanced by parents and can, subject to natural justice considerations, adopt modified proposals, the justification for that is the same and the extent of modification legitimately can only be as far as is necessary to avoid adverse effects upon best interests.  As Callinan J observed in AMS & AIF (cited with approval by Gummow and Callinan JJ in U & U (with whom Gleeson CJ, McHugh and Hayne JJ agreed)):

   It will generally not be possible for a trial judge to construct a framework and environment for the upbringing of a child.  What happens in practice is that those competing for the care and custody of a child will present proposals to the Court to advance the welfare of the child.  Judges frequently will be able to mould or adopt such proposals in making orders but rarely will they be able to invent or construct substantially different arrangements for children from those proposed by the parties.

   68.  It can thus be seen that it was not the task of the trial judge to mould or create, by the exercise of discretionary powers, the most desirable solution or desirable circumstances, blind or indifferent to each parent's fundamental right to exercise their respective rights to choose where they lived and worked consistent with the child's best interests.  Rather, those rights were to be respected.  Only if the exercise of such parental rights could be seen as so adversely affecting the child's best interests could interference with their exercise be legitimate;  and then only to the extent necessary to avoid such adverse effects, having considered available alternatives.

7. It is important that all of those very complex issues be considered in relation to this matter. In Nada & Nettle [2014] FamCAFC 123, a decision of May, Ainslie-Wallace & Austin JJ, handed down on 16 July 2014, the Full Court had cause to consider similar issues, though perhaps not with the degree of detail that was entered into in the decision in Adamson & Adamson. What they did note, however, at paragraphs 13 and 14 under the heading, “The Judge's Reasons” was the following:

   13.  His Honour first observed from [2] that the present case was one, albeit rare, in which the mother and child "is required to return ... to the area from which they clandestinely moved, without reference to the father or the Court, some nine months ago."

   14.  He said:

   5.  Although the Court should be and is properly concerned at the mother's deception of the father (and the Court) over a very considerable period of time, and accordingly there must be, in my view, genuine concerns regarding the mother's bona fides, ultimately the child's best interests must be and remain the paramount consideration in the determination of parenting orders.

8. That statement by the judge at first instance Judge Neville, reflects obviously the thinking of the Court in relation to matters such as this.  In fact, the statement by Judge Neville is a succinct recitation of the comments of Boland J, as she then was, in Morgan & Miles in paragraph 86 where after commenting upon the decision and guidance by Goode & Goode [2006] FLC 93-286 she said:

   I conclude, the legislation, including the matters referred to above in Goode, does require consideration of section 60CC, section 61D, and section 65DAA (with reference to section 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an "unauthorised" relocation has occurred.

DISCUSSION:

1. The various decisions and musings of the judges of this Court and the Family Court reflect clearly the difficulties that arise in relation to proceedings such as this, where there has been a radical change in what existed such that it is contended that from the father's perspective, not only should the child return to the (omitted) area, but that the mother should also be required to return to the (omitted) area, notwithstanding that the mother's position is to say that she would not return, even if the child were ordered to be returned, because of her circumstances.

1. The submissions of each of the parties' counsel in relation to the matter then at length addressed the perspectives of each of the parties.  At paragraph 17 of the written submissions filed on behalf of the father, counsel for the father submitted the reasons why it was appropriate in this rare case to make a coercive order.  The reasons were detailed in subparagraphs (a) through (h) and were in these terms:

   a.There was no “emergency” matter requiring or justifying the mother to relocate, such as domestic violence. Whilst the mother applied for a Protection Order against the father, she admits this was only after receiving his solicitor’s letter that he did not agree to her relocating. Her reason to file the Application could be inferred as being purely tactical. The mother then withdrew her order. The conflict between the parties post-separation arose from the mother’s ongoing refusal to allow the father to spend meaningful time with the child. Since orders have been made in March 2015, the mother does not depose to any abusive communications with or from the father;

   b.The mother’s relocation to Brisbane was undertaken in the face of the father’s opposition and where no satisfactory arrangements were made for the father to spend time with the child. IT could readily be inferred that the mother was gambling upon the father “going away” and not pursuing a relationship with his child, particularly if she made it sufficiently difficult for him;

   c.If an order is not made for the mother to move back to (omitted), the child will have very limited opportunities to spend time with her father given the costs and travel required. In fact it is difficult to see how the child would be able to maintain a meaningful relationship with her father, unless the father relocates also. The child’s right to a relationship with her father is particularly important in these circumstances where the father’s relationship with the child is still developing and where the mother has limited the father’s opportunity to advance his relationships with the child;

   d. The age of this child is particularly important, given she is only just over two years of age. The child is not old enough for the father to communicate with meaningfully through Skype or by telephone. Any such communication would be necessarily brief and under the mother’s control and supervision. The child needs ongoing and regular face to face time with her father to continue to be familiar with and known him. The child is not of an age and her relationship with her father is not sufficiently developed to withstand lengthy periods of separation;

   e.The mother’s employment and desire to spend time with her family should not take precedence over the child’s right to know and be cared for by her father and to maintain a meaningful relationship with him. This is really the mother’s only argument as to why she will not return to (omitted);

   f.The mother is familiar with (omitted), having chosen to live here and remaining here for four years. The mother had employment in (omitted) in her chosen field which she resigned for no apparent reason. There have been numerous positions which the mother could have applied for in (omitted) over the past few months. The mother is competent and resourceful and could find employment in (omitted). In any event, the mother remained in (omitted) without employment for sixteen months after separation prior to her leaving (omitted);

   g.The mother would readily find accommodation in (omitted) at a reasonable rental given the significant downturn which has hit the (omitted) economy;

   h.The mother has friends and personal supports from her four years spent in (omitted). The mother is not coming to an area where she would be isolated or without emotional support or friendships.

2. Of course, from the perspective of the mother, submissions were also made and emphasised in addresses with regard to the reasons why the mother should remain in the southeast corner.  In paragraphs 8 through 14 of those submissions the following was noted:

   8.The mother’s case is that it is not reasonably practicable for her to return to live in (omitted). Hence the competing residence application.

   9.The child’s living arrangements are not entirely cut and dried, in that the child has also spent substantial periods of her life at Brisbane/ the (omitted):

   ·The year she was born (2013), the child spent approximately 40% of her time at the (omitted)

   ·In 2014, the child spent approximately 33% of her time at the (omitted)

   ·In 2015, the child has spent nearly all of her time at the (omitted) – though this is a direct consequence of the mother’s relocation so that the Court would likely not place weight upon it

   10.This is not a case where it can be confidently stated that the child was in a stable and settled environment in (omitted) per se; rather she was well used to living in both locations. More significantly, she was in a settled environment living with the mother. At her young age, the child no doubt associates the mother’s home as her home. The child is only two (2) years old.

   11.It is submitted that this child’s connection with Brisbane/ the (omitted) is much greater than (omitted):

   ·The mother – the child’s overwhelmingly primary carer – lives there

   ·The maternal family live there

   ·The paternal family live there

   12.The Court would note that the parties originally met and commenced a relationship at the (omitted). The mother only moved to (omitted) in 2011 for work purposes, following which the father followed.

   13.The mother is now back in Brisbane for work/ study purposes and family support. If the father wanted to, he could return to Brisbane or the (omitted) and continue for work. He does not strictly need to live in (omitted).

   14.In 2014, the father himself travelled to the (omitted) for holiday visits in the months of May, July, September, October, November and December. These are just the six (6) visits that the mother took note of – there may well have been other visits.

3. It was also emphasised by counsel for each, that the behaviour of one party or the other was nothing short of reprehensible.  From the father's perspective it was emphasised that the mother was made aware of the father's objection to her move and notwithstanding that, she simply decided to go.  It was emphasised repeatedly that the mother was in fact “no shrinking violet" and that notwithstanding that there had been two parenting plans entered into, both of which recognised equal shared parental responsibility and the importance of this little girl having a relationship with both of her parents, the mother was in no way reluctant to demand of the father what should occur in relation to time.

4. Threats were certainly made about the father's opportunity to spend time with the child and the cessation of such time occurring if the father did not agree with the mother's proposals in relation to parenting.  It was noteworthy, in particular that on only 19 September 2014, further discussions were held with regard to moving on from the original parenting plan and some agreement was reached, but within a matter of only hours, in other words, as soon as the mother left the family dispute resolution, she withdrew her consent to the further development of time to be spent by the father with the child.

5. Thereafter, the mother was determined to achieve her own goals.  She acted in a manner which was nothing short, in my assessment, of bullying.  And it was noteworthy that whilst understandable emphasis was given to the appalling nature of the texts forwarded by the father to the mother, the mother was not in any way cowed as a result of the insulting and disgraceful nature of those texts.  She continued to dictate to the father what should and should not happen. In particular, when arrangements were in place for the father to have the opportunity to spend some time with the child in the southeast corner of the state, the mother purported to suggest that as the father had taken the child to the house of a friend without first confirming the mother's approval to such an arrangement, all such time to be spent by him afterwards was supervised. The mother says that the father not being able to be contacted at a time when she wished to speak with him or, more particularly, the child caused her emotional distress because she did not know where the child was. 

6. It was submitted that this was nonsense and that there was never a concern about the care of the child, but rather actions being taken on the mother’s part to attempt to justify her behaviours subsequently in precluding the father's opportunity for time with the child.  There was nothing in the material or in my assessment which gave rise to an indication that the mother was intimidated, threatened or frightened as a result of the father's communications or by him taking the child to a friend's house without first confirming with the mother that that was to be done.

7. The mother was a strong woman.  She knew exactly what she wanted and was in my assessment at least at that time, determined to achieve her own goals notwithstanding whatever might or might not have been sought by the father.  She quite simply was determined that she would have the child in her care, she would have the child where she wished to be and the father would “dance to her tune”.  That was clear, for example, when after the mother says that she was emotionally distressed by not knowing where the child was, she precluded the father from any real opportunity to spend time with the child for a number of months thereafter other than for a few hours here or there.

8. More particularly, the mother's response to the communication provided to her by the legal representatives for the father was incredible.  The parties had been separated for over a year when the mother suggested that she might intend to relocate.  On 5 November 2014 the solicitors for the father wrote to the mother.  It would appear that that correspondence was not received by her, but the father was so determined to ensure that the mother was aware of his objection to any relocation, that on 12 November 2014 the letter was reprinted and was specifically handed to the mother at the contact centre where a handover occurred on 13 November 2014.

9. The very next day on 14 November 2014, the mother filed an application for a protection order.  She said she did so because she was scared that the father would seek custody, which of course he was perfectly entitled to do if he had concerns in relation to the proceedings. But they were the actions not of a person fearful of domestic violence but clearly were in my assessment, the actions of a person who was determined to get her own way to behave in a manner which reflected her attitude to these proceedings, as suggested by counsel for the father, it was "My way or the highway."

10. The mother acted in a preposterous manner.  She bullied the father in many ways and whilst it was understandably emphasised that the text communications directed by the father to the mother were appalling, abusive and in the poorest of taste, there was not, in my assessment any basis upon which the mother could actually say that she was intimidated or controlled by the father. 

11. Ultimately, the mother's behaviour in this matter is a factor that needs to be considered, though it needs to be considered not in terms of whether she should or should not be punished for her behaviours, but rather whether the actions of the mother were of such detriment to the relationship that the child had a right to have with the father that it should be acted upon.

12. The position of each of the parents is as I say, quite incredible.  Neither gives an inch, but there is at least in my assessment, some consideration by the father but not the mother of the needs of the child.  The father could easily have pressed, as he sought in his original application for the child to live with him and for the mother's opportunity for time to be heavily reduced.  It would be understandable if he did so, but his assessment, and it is a child-focused assessment, was that the child's best interests were met by the opportunity for a relationship being facilitated with both parents.

13. It was certainly clear that the mother's perspective was one of determining that she would have the child in her care and would determine what opportunities might be available for the father to spend time with the child. 

14. The issue of costs loomed large in the matter and both parties provided evidence, albeit a little difficult to fathom, relating to the expenses that each would experience if the child were to live in the southeast corner and the father were required to travel regularly for the purposes of spending time with the child or the child were to live in (omitted) and the mother were required to travel.

15. It was a significant consideration particularly when considering practicability but the ultimate consideration is the welfare and the best interests of the child.  I am mindful in that respect of the very many matters that must be considered.  The practicability of the arrangements that are proposed by each needs to be looked at and as was emphasised in the cases if necessary, some modification needed to be made to the proposals of each of the parties in relation to parenting. 

16. In that regard, I am mindful of the geography and the difficulties that currently exist. However, I am also obviously mindful of the unilateral nature of the actions taken by the mother, more so when as was emphasised, she was clearly aware of the father's objection and of the fact that proceedings would be brought in relation to the matter. Notwithstanding that, and her clear knowledge of the consequences of her actions she determined to move.  What that led to was the very significant limitation on opportunities for this child to develop and foster her relationship with her father.

17. I am also mindful of the provisions of section 60B(1) and (2) and 60CC subsections (2), (2A) and (3) and of the various considerations that must be looked at in relation to arrangements with regard to ensuring that the best interests of a child are to the fore. Section 60B(1) and (2) are in these terms:

    60B(1) The objects of this Part are to ensure that the best interests of children are met by:

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

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

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

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

    60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

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

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

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

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

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

18. Section 60CC (2), (2A) and (3) are in these terms:

    60CC(2) The primary considerations are:

    (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.

    60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

    Additional considerations

    60CC(3) Additional considerations are:

    (a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

    (b)  the nature of the relationship of the child with:

    (i)          each of the child's parents; and

    (ii) other persons (including any grandparent or other relative of the child);

    (c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

    (i)to participate in making decisions about major long-term issues in relation to the child; and

    (ii)         to spend time with the child; and

    (iii)       to communicate with the child;

    (ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

    (d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

    (i)          either of his or her parents; or

    (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

    (e) the practical difficulty and expense of a 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 both parents on a regular basis;

    (f) the capacity of:

    (i)          each of the child's parents; and

    (ii) any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs;

    (g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

    (h) if the child is an Aboriginal child or a Torres Strait Islander child:

    (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    (ii) the likely impact any proposed parenting order under this Part will have on that right;

    (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

    (j) any family violence involving the child or a member of the child's family;

    (k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

    (i)          the nature of the order;

    (ii)          the circumstances in which the order was made;

    (iii)       any evidence admitted in proceedings for the order;

    (iv)any findings made by the court in, or in proceedings for, the order;

    (v)         any other relevant matter;

    (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

    (m) any other fact or circumstance that the court thinks is relevant.

19. The primary considerations are only two and one in this matter looms far larger than the other.  The significant consideration here is the child's right to a meaningful relationship with both of her parents. 

1. The issue of domestic violence or family violence was certainly emphasised on the part of the mother and it is understandable that that would be the case. I under no circumstances condone the correspondence forwarded by the father to the mother and the disgraceful nature of it but as I have indicated, I am also very much of the view that there has been no genuine concern shown by the mother in relation to the father.  As I noted earlier, post separation the mother remained in (omitted) for well over a year without any suggestion of domestic violence or concern on her part. 

2. She certainly travelled regularly for the purposes of her studies and to spend time with members of her family but it was clear that she was content and able to remain settled in (omitted). It was only when the father indicated that he did not agree to a more permanent move that the mother raised the spectre of domestic violence and that of course, seems to have been what actually then gave rise to aspects of real domestic violence insofar as the abusive texts being sent by the father. 

3. It was a case of putting the cart before the horse because in my assessment, on the evidence presented to date, there was no evidence of a domestically violent relationship until the mother filed the necessary application seeking orders in relation to domestic violence that it actually occurred.

4. It is a significant consideration in relation to these proceedings because the mother seeks to again draw herself up by her own bootstraps.  Where she previously limited the father's opportunity for time with the child by suggesting that she had concerns that she did not know where the child was and that therefore she needed to act protectively she, similarly, through her actions induced actual domestic violence but had already sought to rely upon that as a reason to empower her to relocate.

5. I am not satisfied under any circumstances at the present time that the issue of domestic violence is as significant or as relevant to any determination in relation to these proceedings.  As I noted, however, I am absolutely of the view that the child's right and opportunity to a meaningful relationship with both parents is of the very greatest significance in relation to the determination of this matter. 

6. Quite simply, it is in my assessment, at least on an interim basis, one of those rare occasions where a coercive order is appropriate. The mother is studying. The indications given during submissions in relation to the proceedings were that she would finish the necessary coursework that was required to be participated in by her on 12 June 2015. Therefore, her coursework has been completed and she could return to (omitted).

7. That is not to say that that would ultimately be the determination in relation to these proceedings.  Far more information will obviously be required with regard to the possibilities available to the father of changing the terms of his employment with regard to fly-in/fly-out work and whether that might then be able to be facilitated from Brisbane or the (omitted), rather than requiring him to live in (omitted).

8. It may be that ultimately the mother's proposal with regard to relocation to the south might be available to her.  But that is for another day and being mindful of the very many considerations that must be looked at in relation to such proceedings, including as I say, most significantly, the child's right to a meaningful relationship with both parents and the opportunity to have that meaningful relationship fostered and developed, I am satisfied that it is appropriate than an order should be made generally in terms of the amended initiating application interim orders, detailed in orders 1 through 8 of the amended initiating application.

9. Thereafter, it would be appropriate for this matter to be moved toward a hearing as soon as possible.  So as to ensure that the matter loses no further priority, I intend to make orders with regard to the appointment of an Independent Children's Lawyer, it being clear that there are significant issues to be investigated in relation to the behaviours and attitudes of both parents with regard to the child's right to a meaningful relationship with the other, as well as to make orders with regard to the listing of the matter for a two day hearing in Mackay.  Accordingly, the orders of the Court will be as detailed at the commencement of these reasons.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Coker

Associate: 

Date:  28 July 2015