RAICH & RAICH
[2015] FCCA 1781
•29 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAICH & RAICH | [2015] FCCA 1781 |
| Catchwords: PRACTICE AND PROCEDURE – Venue – change of venue – application for change of venue – where respondent seeks transfer to Newcastle Registry – where children reside with respondent. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DB, 62G, 65DAA Federal Circuit Court Rules 2001, r.8.01 |
| Cases cited: Goode & Goode [2006] 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MR RAICH |
| Respondent: | MS RAICH |
| File Number: | SYC 4945 of 2014 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 2 December 2014 |
| Date of Last Submission: | 2 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2015 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Mr Springthorpe |
| Solicitors for the Respondent: | Legal Minds |
ORDERS
UNTIL FURTHER ORDER
The Applicant father and the Respondent mother are to have equal shared parental responsibility for the children of the marriage [X] born [omitted] 2008 and [Y] born [omitted] 2010.
The children [X] and [Y] are to live with the mother.
The children [X] and [Y] are to spend time with the father:
(a)For half of each school holiday as agreed, or in default of agreement, for the first half in 2015 and all odd-numbered years thereafter and the second half in 2016 and all even numbered years thereafter;
(b)For the third weekend of each school term from 7:00 pm on Friday until 4:00 pm on Sunday PROVIDED THAT if the Monday immediately after the weekend is a public holiday then until 4:00 pm on the public holiday Monday;
(c)For the weekend including Fathers’ Day from 7:00 pm on Friday until 4:00 pm on Sunday;
(d)For such further or other times as the parties shall agree.
If the father is unable to spend time with the children during any school holiday period as provided by Order (3)(a) or any weekend as provided by Orders (3)(b) and (c) he must give the mother seven (7) days’ notice of his inability to do so.
The parties are to be equally responsible for the costs of travel to facilitate the children spending time with the father and for the delivery of the children from one parent to the other for the purposes of the time provided by Order (3) above.
For the purposes of the father spending time with the children during the school holidays as provided by Order (3)(a) the mother is to deliver the children to the father’s residence or such other place as the parties may agree by 12:00 noon on the first Saturday of the school holidays or the middle Saturday of the school holidays as the case may be and the father is to return the children to the mother’s residence by 3:00 pm on the following Saturday.
If either parent is unable to comply with the times set out in the immediately preceding Order he or she is to inform the other parent as soon as possible and advise as to an estimated time of arrival.
The children or either of them are to be permitted to speak to the father by telephone and for this purpose the father is to initiate the call by telephoning the mother’s telephone number and the mother must do all things necessary to facilitate the call.
The father is to speak to the children by telephone for a period of up to 15 minutes between the hours of 6:00 pm and 7:00 pm each Tuesday and Thursday.
Each parent must do all things necessary to permit the children to telephone the other parent on each of the children’s birthdays and each of the parent’s birthdays at any reasonable time.
If either parent wishes to travel overseas with the children, he or she must provide the other parent with a copy of a detailed travel itinerary including details of flights and times, addresses where the children will be staying when they are overseas and telephone numbers where the children may be contacted whilst overseas.
The parents are restrained from criticising or denigrating the other parent or members of the other parents’ family in the presence or hearing of either of the children or from permitting any third person to do so.
The proceedings are transferred to the Newcastle Registry of the Court to be listed for mention before a Judge on a date to be fixed.
The parties are to attend upon a Family Consultant at a time, date and place to be advised by the Director of Child Dispute Services at the Newcastle Registry of the Court for the purposes of the preparation of a Family Report under the provisions of section 62G of the Family Law Act 1975 dealing with issues relating to the care, welfare and development of the children [X] born [omitted] 2008 and [Y] born [omitted] 2010.
IT IS NOTED that publication of this judgment under the pseudonym Raich & Raich is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4945 of 2014
| MR RAICH |
Applicant
And
| MS RAICH |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for parenting orders by the father of two children, [X], who is seven years of age, and [Y], who is aged five. They currently live with their mother, the Respondent, in the city of [A], New South Wales.
The father lives in a suburb of Sydney. In his Application for final orders, the father seeks that the residence of the children should be “relocated” to within 30 kilometres of the Central Business District of Sydney. In his Application for Interim Orders, the father seeks time with the children during the school terms and for the second half of the school holidays. He is not seeking an order on an interim basis requiring the mother to move the residence of the children closer to Sydney pending the final hearing.
The mother has filed a Response. There is some common ground between the parties about interim parenting orders, although the mother denies through her solicitor, Mr Springthorpe, that this is a relocation case at all. One area where the parties are at issue arises from the mother’s wish to transfer the proceedings to the Newcastle Registry of the Court so that the proceedings can be heard by the Court on circuit in Armidale.
Background
The father was born on [omitted] 1976. The mother was born on [omitted] 1986.
The parties commenced cohabitation on 13 June 2006 and were married on [omitted] 2008. They separated on 15 August 2011.
There are two children of the marriage. [X] was born on [omitted] 2008. The parties’ daughter, [Y], was born on [omitted] 2010. The children live with the mother.
The mother sets out in her affidavit of 16 October 2014 a history of the parties’ relationship, including where they lived.
Essentially, she deposes that they met in Sydney and commenced to live together in 2006. When the father returned to his native England, the mother went with him. They became engaged in England.
The parties returned to Australia to live, when the mother was pregnant with their son [X]. They initially resided with the mother’s parents in [T], New South Wales.
The parties moved to [P], New South Wales, where the father had obtained work. The mother also obtained a job there.
The parties’ son [X] was born in [P] on [omitted] 2008.
In 2009 the parties moved to [S], New South Wales, where the father obtained a job. The mother was employed in nearby [omitted]. They purchased a house in [B].
The parties’ daughter was born in [omitted] on [omitted] 2010.
Some difficulties arose between the parties and they sold the property in [B] and moved back to [P], where the father obtained another job.
The parties separated for approximately six weeks in December 2010 and January 2011.
The mother deposed in her affidavit that they proposed to move to Melbourne so they moved out of [P]. Their furniture was sent down to Melbourne.
According to the mother, the father was still unsure about moving to Melbourne so she took the children back to [T], where she stayed with her family.[1]
[1] Affidavit of Ms Raich 16.10.2014 at paragraph [25]
The father took up residence in Sydney in June 2011.
The parties separated in [T] in August 2011. The father returned to live in Sydney. The mother remained living in [T] until January 2014. She then moved to [A], where she still lives with the children.
Procedural History
The father filed his Application and supporting affidavit on 8 August 2014. The mother filed her Response and a supporting affidavit on 24 October 2014.
The Application was returnable on 3 November 2014. On that date the parties were directed to attend a Child Dispute Conference with a Family Consultant, which took place on 21 November 2014. There was little in the way of agreement between the parties, the Family Consultant noting in her Memorandum to the Court that the said that relocating to Sydney was not possible due to financial issues. She said that she could not afford to live in Sydney and expressed doubt about the father’s offer to assist her to relocate.
The Application was listed for interim hearing on 2 December 2014.
Evidence and Submissions
The parties relied on their affidavits. The father appeared for himself and the mother was represented by Mr Springthorpe, solicitor.
The father submitted that the mother had first said that [T] was the ideal place for her to live with the children, but now she was saying that [A] was better for her. He stated that the best interests of the children required them to have a meaningful relationship with both parents but staying in hotel rooms every three weeks did not assist the relationship to develop.
The father further submitted that the distance that he is required to travel cuts into the time that he has to spend with the children. He said that the children really love Sydney and he would like them to get used to Sydney.
The father also submitted that the relocation was a unilateral decision by the mother and the children should spend significantly more time with him in Sydney.
Mr Springthorpe for the mother said that this was not a relocation case at all. The mother and children had never lived in Sydney. The father had no family in Sydney and there did not seem to be any good reason why the father could not move to Newcastle to live, which would shorten the travel time considerably.
The mother is currently studying at the University [omitted], where she is undertaking a Master’s degree in [omitted]. The children, she claimed, are well settled in [A].
The mother reiterated her application to change the venue of the proceedings to the Newcastle Registry with a view to the proceedings being heard in Armidale.
Mr Springthorpe submitted that the Court should dismiss the father’s application for a final order that the mother should relocate to a place within 30 kilometres of the Sydney Central Business District at this stage, as it was an “embarrassment”. I am not prepared to accede to that application, as the relocation order is only sought by the father as a final order and this is an interim hearing. To embark on that course would, in my view, lead to a denial of procedural fairness to the father.
The relevant law in regard to parenting applications
When the Court is considering making parenting orders, whether final orders or orders until final order (interim orders), the Court must have regard to various sections of the Family Law Act 1975 (Cth) that are to be found in Part VII of the Act. In particular, it should have regard to the provisions of:
a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;
b)Section 60CA, which requires the Court to regard the best interests of the child (or the children, in this case) as the paramount consideration;
c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;
d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and
e)Section 65DAA, which requires the Court to consider whether equal time or substantial or significant time with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.
All of those matters have been considered, so far as they are relevant. The matters in sections 60CC, 61DA and 65DAA will be considered further in this decision.
Relevant matters in section 60CC of the Family Law Act
The Full Court of the Family Court in Goode & Goode[2] consider the matters in s.60CC that are relevant and, if possible, make findings about them, noting that:
In interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.[3]
[2] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
[3] (2006) 36 Fam LR 422 at 445 [82]
In these, there is no real issue about any need to protect the children from physical or psychological harm from abuse, neglect or family violence as set out in s.60CC(2)(b). The primary consideration in s.60CC(2)(a) is relevant and has already been adverted by the father in his oral submission. The Court must consider the benefit to the children in having a meaningful relationship with both of their parents.
The evidence is that the mother has been the children’s primary caregiver and there is no argument that the children have a meaningful relationship with her. The father’s concern is that it is difficult for the children to develop a meaningful relationship with him because they live so far away from him and so much time is taken up in traveling.
There are additional considerations in s.60CC(3). The Court does not have the benefit of the views of the children, although no doubt a Family Consultant will speak to them when preparing a Family Report.
Equal shared parental responsibility and section 61DA of the Family Law Act
The Court is required to decide whether the presumption in s.61DA of the Act that equal shared parental responsibility is in the best interests of the children does or does not apply.
Neither party seeks an order about parental responsibility but the Court is still required to consider it. Subsection 61DA(3) provides that when the Court is making an interim order the presumption applies unless the Court considers that it would not be appropriate in the circumstances.
There are no allegations of abuse or family violence that would require the Court to find that the presumption does not apply, nor is there any evidence that would rebut the presumption. I propose to make an order for equal shared parental responsibility, noting the provisions of s.61DB about disregarding the allocation of parental responsibility in an interim order when the court is considering making a final parenting order.
Section 65DAA of the Family Law Act
In my view, the distance between the residences of the parties and the travelling time point to the fact that neither equal time between the parents nor substantial and significant time with the father are reasonably practicable.
Orders that are in the children’s best interests
The mother’s proposals largely appear to meet the requirements of the children. The mother appears to be well settled in [A] with the children. She has offered to share the travelling, which is appropriate.
Transfer to the Newcastle Registry
The mother seeks an Order transferring the proceedings to the Newcastle Registry, with a view to the final hearing taking place in Armidale on circuit.
Rule 8.02 requires the Court to take into account:
(a) the convenience of the parties; and
(b) the limiting of expense and the cost of the proceeding; and
(c) whether the matter has been listed for final hearing; and
(d) any other relevant matter.
In my view, the balance of convenience argument favours the mother. The children live with the mother in [A]. It would be preferable for the Family Report to be undertaken by a Family Consultant based at the Newcastle Registry, to reduce the amount of travelling done by the children. It is presumably more expensive for the mother to travel with two young children than for the father, who only has to travel by himself. The mother is legally represented and her solicitors are located in Armidale. The father is self-represented.
The Application has not been listed for final hearing. In my view, that should be done by the docket Judge in Newcastle. Whether or not the matter is actually heard in Armidale or Newcastle itself is a matter for the Judge in whose docket the matter will be placed.
I propose to transfer the Application to the Newcastle Registry to be listed for mention on a date to be fixed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 29 June 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Costs
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Procedural Fairness
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