RECKARD & CHADWICK
[2020] FCCA 2758
•8 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RECKARD & CHADWICK | [2020] FCCA 2758 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – coercive relocation order considered – impact of border closures considered – change of children’s long term residence considered. |
| Legislation: Family Law Act 1975 (Cth), s.60CC Queensland Government COVID-19 Hotspots |
| Cases cited: AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 |
| Applicant: | MR RECKARD |
| Respondent: | MS CHADWICK |
| File Number: | CAC 1807 of 2020 |
| Judgment of: | Judge Dunkley |
| Hearing date: | 2 September 2020 |
| Date of Last Submission: | 2 September 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 8 October 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Warren of Andrew Warren Associates |
| Solicitors for the Respondent: | Mr Bertrand of Sterling Law (Qld) |
ORDERS
The requirement for a s.60I certificate is dispensed with.
PENDING FURTHER ORDER
The parents shall have equal shared parental responsibility for X born in 2004 and Y born in 2008.
The children shall live with their mother, subject to the following orders.
The mother shall, within 21 days of the date hereof, cause X and Y to live within a 30km radius of the Town B Post Office.
If the mother does not herself relocate her residence within 30km radius of the Town B Post Office within 21 days of the date hereof, the children X and Y will, from that date, live with their father until the mother moves her residence.
Upon the mother moving her place of residence to comply with order 5 hereof, X and Y shall again live with their mother and thereafter spend time with their father unless the parents otherwise agree:
(a)During NSW school term time:
(i)In each alternate week from 2pm Friday to 9am Monday starting the first Friday after the mother moves her residence.
(ii)Each alternate week in the other week, from 5pm Wednesday to 5pm Friday, starting the second week after the mother moves her residence.
(b)During NSW school holiday time:
(i)For the first half of that holiday period at the end of Term 1, 2 and 3.
(ii)For the second half of the Term 4 school holidays.
THE COURT FURTHER ORDERS
(a) The father shall provide a 3cm sample of undyed hair within 7 days of the date hereof, to enable a full drug screen test, at his expense, by hair follicle sample and provide that test result upon receipt to the mother.
(b)The father shall provide a 3cm sample of undyed hair within 67 days of the date hereof, to enable a full drug screen test, at his expense, by hair follicle sample and provide that test result upon receipt to the mother.
Whilst ever X and Y are spending time with or living with the father, he shall not consume more than 3 standard units of alcohol on any day and shall on 3 days in each week abstain from alcohol consumption.
If the mother relocates her home to NSW in compliance with order 5 hereof, at any time the father shall provide to her a sum equivalent to her rental bond within 48 hours of receipt of a landlord or real estate agent’s letter evidencing the quantum of same, with such amount to be repaid by the mother to the father within 6 months of her receipt of such amount.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report.
The Family Report to deal with the following matters:
(a)Any views expressed by the children the subject of parenting orders sought in this case, provided that the children shall not be required to express a view in relation to any matter.
(b)The nature of the relationships of the children with each of the children’s parents and with significant other persons.
(c)The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
(d)The likely effect of any changes in the children’s circumstances, including the likely effect on the child of any separation from:
(i)either of the parents: or
(ii)any other child, or significant person, with whom the children have been living.
(e)The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)The capacity of each parent, or another person, to provide for the needs of the children, including emotional and intellectual needs.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) other children and of either of the children’s parents and any other characteristics of the children that the reporter thinks are relevant.
(h)Each parent’s attitude to the children and to the responsibilities of parenthood.
(i)Any family violence involving the children or a member of the children’s family.
(j)Such other issues as the Family Consultant considers relevant.
The Family Consultant is requested to complete the report not less than 4 weeks before the directions hearing.
The parties shall attend all appointments with the Family Consultant and shall ensure the subject children attend all appointments with the Family Consultant, as requested by the Family Consultant.
The Family Consultant may inspect the Court file and any documents produced on subpoena to which no objection has been lodged.
Upon the report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:
(a)A Children’s Court;
(b)A child protection authority;
(c)A State or Territory Legal Aid Authority; and
(d)A convener of any legal dispute resolution conference.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
This case is listed for further directions before Judge W. Neville in Canberra at 9.15am on 19 July 2021 consequent on the release of the family report.
IT IS NOTED that publication of this judgment under the pseudonym Reckard & Chadwick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1807 of 2020
| MR RECKARD |
Applicant
And
| MS CHADWICK |
Respondent
REASONS FOR JUDGMENT
Background
Mr Reckard (the father) and Ms Chadwick (the mother) are the parents of X aged 16, who was born in 2004 and Y (known to the parents as Y) aged 12, who was born in 2008.
The parents’ relationship started in 2003 and ended in 2007. The mother was, at separation, then pregnant with Y.
At the time of separation the mother moved from Suburb C in western Sydney where the family lived to Town B on the Region D of NSW accompanied by X.
Six months later the father also moved to Town B.
In 2015 the mother and the children moved from Town B to Town E, which is about one hour from Town B.
A year later the mother returned with the children initially to live in Town B and then later in Town F and then to Town G. At all times the father remained in Town B.
The parents between themselves from date of separation have negotiated parenting arrangements for the children without the need for court orders.
Those arrangements amounted to the children spending time with the father that would be considered significant and substantial time.
The father says he last spent time with the children on 21 June 2020.
He believes in early August 2020 the mother and children moved to Queensland. It may have been late July 2020. She did so with pre‑planning and without notice to the father. It is an agreed fact the mother quickly moved the children’s residence to Queensland without telling or consulting with the father as the state border closure was imminent. The exact date of moving is not disclosed by the mother.
On 18 August 2020 the father filed and Initiating Application, Affidavit and Notice of Risk.
On 18 August 2020 a Registrar listed the Initiating Application on 2 September 2020 and ordered service by email by 21 August 2020.
On 1 September 2020 the mother filed a Response, Affidavit, Financial Statement and Notice of Risk.
The father has filed a further affidavit on 1 September 2020.
Orders Sought
Father
·That within 7 days the mother cause the children to live at H Street, Town G or within a 20kms radius thereof.
·That Y spend time with the father each weekend from 3pm Friday to 9am Monday.
·That X spend time with the father in accordance with her wishes.
Mother
·That the parties attend family dispute resolution.
·That the father undertake drug urinalysis testing within 24 hours of a request being made by the mother.
·Case transferred to the Federal Circuit Court Brisbane.
Chronology
1971
Father born
1974
Mother born
2003
Parents relationship starts
2004
X born
2007
Parents separate
2008
Y born
July or August 2020
Mother moved to Queensland with children
8 August 2020
Father learns children living in Queensland
18 August 2020
Father files Initiating Application
1 September 2020
Mother files Response
2 September 2020
Interim hearing – judgment reserved
Issues
·Is family dispute resolution to be ordered?
·Is the mother to be compelled to have the children live within 20kms of Town G?
·What parenting orders are to be made?
·Venue of proceedings?
Evidence
The father lives in Town B.
He works as a self‑employed tradesman.
The mother now lives in Suburb J in Queensland, which is 16kms from the Brisbane CBD.
She describes herself as a homemaker.
She and the children moved to Queensland without notice to the father on a date in late July or August that she does not disclose so as to enter Queensland before the state border closed to NSW residents.
Both X and Y have been home schooled for much of their education.
X is currently doing year 10 studies and hopes next year to undertake further studies.
The mother’s income is $1,350 per fortnight arising from parenting benefit and child support.
She pays rent of $400 per week in Queensland.
The father and mother agree X has been using marijuana. The father says since early 2019. On learning this the father told the mother and he says she stopped the children spending time with him “for about a month”.
The mother asserts the father has a long history of marijuana use and over indulging in alcohol. The father, apart from one incident, asserts he has not used marijuana since “his early 20s”. He denies abuse of alcohol.
The father concedes to on one occasion in 2020 having smoked marijuana with X. His reasons for this are contained within paragraph 49 of his affidavit sworn/affirmed 17 August 2020.
By reason of the border closure between NSW and Queensland, travel to Queensland from the father’s home is governed by Queensland Government regulations. Those regulations are exhibit A.
Since 1.00am on 8 August 2020 the Region K of New South Wales is considered a COVID-19 hotspot by the Queensland Government. Town B is within this region.
Those regulations exempt from a mandatory 14 day quarantine period certain prescribed classes of people.
Pursuant to paragraph 11 of part 2 of the regulation:
A person who has been in a COVID-19 hotspot in the 14 days prior to entering Queensland must not enter Queensland unless:
b. … to give effect to orders of a Court …
c. to fulfil a legal obligation relating to shared parenting or child contact …
Pursuant to paragraph 12 of part 2 of the regulation:
Despite paragraph 11, an unaccompanied minor is not permitted to enter Queensland from a COVID-19 hotspot.
Pursuant to paragraph 13:
A person permitted to enter Queensland from a COVID-19 hotspot:
c. under another part ground in paragraph 11 must comply with the requirements for quarantine.
Pursuant to paragraph 14:
A person permitted to enter Queensland from a COVID-19 hotspot is only permitted to enter Queensland by air …
Determination
Consequences of Queensland Board Regulations
There is no exemption available for quarantine for the father if he enters Queensland and he must enter by air.
The children on return to Queensland from spending time with the father in NSW (outside the bubble area) must be accompanied by an adult (presumably the father or mother) and that person would have to quarantine for 14 days at their expense on returning to Queensland.
No regulation or health order prohibits or hinders the mother and/or children coming into NSW and remaining in NSW. No quarantine is required.
More recently a “bubble” along the Queensland/NSW border has been created. Time between the children and the father could take place in that “bubble” area without the need for quarantine. It is a very long road trip from Town B to that “bubble area”. The children could return to Queensland from the bubble area without needing to quarantine. The mother would have to deliver the children to the father within the bubble area.
Parenting Orders
Parenting orders must have as their paramount consideration the best interest of the children and must be reasonably practicable.
Decisions in:
·AMS v AIF (1999) 199 CLR 160
·U & U (2002) 211 CLR 238
·Goode & Goode (2006) FLC 93‑286
·Sampson & Hartnett (No 10) (2007) FLC 93-350
are but some of the superior court jurisprudence relevant to this determination.
The mother seeks orders that the parents engage in family dispute resolution before the case proceeds further, that not having occurred to date.
This is a little perplexing given she did not so seek to engage in family dispute resolution with the father prior to her relocation of the children’s residence from the Region K area to Brisbane area, being a distance of over 1,200kms, with a driving time exceeding 18 hours or a flight time of 90 minutes between Sydney and Brisbane, leaving aside driving time to the airport.
Nevertheless, I am satisfied this is an urgent case pursuant to s.60I(9)(d) given the evidence, and because only online or virtual dispute resolution would be possible.
For those reasons an order dispersing with the requirement for family dispute resolution is made.
The children have by parental agreement for all their lives until mid‑2020 been able to maintain a meaningful relationship with each parent and have spent regular time consistently, for the most part, with the father and lived with their mother.
The father does not seek to disturb the children’s long standing arrangement of living with their mother.
He does, however, see to compel the mother to live in a location not of her choosing.
The father has once previously followed the mother’s move of location, when he for six months after the date of separation, relocated to the Region D of NSW to follow the mother.
He is now unwilling to do so for work related reasons. Although self‑employed he has built up a business and work contacts in the Region K region. It would I accept, in the short term, be difficult for him to re-establish himself in Queensland.
If he moved to Queensland he would not easily be able to rebuild his business. He would incur the expense of 14 day quarantine and a long period of rebuilding income. His capacity to pay his current levels of child support would cease. That would have immediate and medium term financial consequences for the children.
Whilst ever the Queensland border restrictions are in place, the father could not reasonably spent face to face time with the children without considerable expense which prohibits the regularity and frequency of time together that has largely occurred for all of the children’s life until late July/early August 2020.
The children’s views are unknown.
They have until their place of residence was moved, willingly spent regular and frequent time with their father. They have I am satisfied as a result of this fact important and significant relationships with each of their parents and each other as siblings.
I am satisfied the mother for over 18 months has known that X has been using marijuana, since the father first advised her of the knowledge he gained in February 2019.
The father’s use of marijuana with X was ill conceived, stupid and an abrogation of his responsibilities as a parent.
It is not clear whether the father has reverted to this regular use of marijuana. It has since he filed his application been available for him to provide drug test results. He has not done so.
His assertion that he is willing to consent to court ordered drug testing provides little to no “comfort” that he is not using, in light of him not volunteering a drug test screen result.
Mandated hair follicle test of the father immediately, with a further test two months thereafter, will confirm or exclude his drug use.
Coupled with an injunction requiring no drug use and alcohol use of over 3 standard drinks on 4 of 7 days a week will mitigate to an acceptable level any risk of harm to the children arising from potential paternal insobriety and diminished parental capacity from use of drugs or alcohol.
Because the children are home schooled they have suffered no disruption to their education by moving to Queensland. Nor would they suffer educational disruption on returning to NSW, if that is so ordered.
A return to living in NSW would return the children to an area where they have friends and much familiarity. There is no evidence that a return to live in NSW with their mother would impact that relationship at all except for the fact the mother would be unhappy at that prospect. There is no evidence such order would compromise her parent capacities.
A return to live in the Region K area would again allow the children to have a meaningful as possible relationship with their father.
Compelling he mother to live with the children in the Region K region is something she has been able to afford since she first made that move in 2007.
There would be a cost in packing and returning. The extent of which is not the subject of any evidence.
The mother’s source of income currently provides her with a minimal surplus. An order requiring the father to fund the mother’s rental bond of 4 weeks in advance as a one off payment would aid the reasonable practicabilities of a mandated order. This amount is to be repaid within 6 months.
The children’s ages are such that for a long time they have, on the parents’ evidence and conduct, benefitted from living with their mother and spending time with their father.
Any orders made will, having regard to X’s age, have a limited duration. For Y the orders are more significant in that they allow through his adolescent years regular and frequent time with his father, at least until final hearing determines an outcome. Such final hearing is likely 12‑24 months hence.
A mandated order for a parent to live in a location not of their choosing is contrary to the rights of most Australians and should only be made in rare or unusual circumstances and so as to secure the best interests of X & Y.
Clearly pursuant to the legislation the children’s best interest are paramount (s.60CA). This, however, is not the sole determinate see U & U[1] and AMS & AIF[2].
[1] U & U (2002) 211 CLR 238
[2] AMS v AIF (1999) 199 CLR 160
The border regulations make it impracticable, indeed virtually impossible, for regular and frequent face to face in person time to occur between the children and the father without very significant expense unaffordable by either party.
It might be possible for such time for “school holidays” because the children are home schooled. Quarantine would not impact upon their education upon their return to Queensland or would not necessarily if the time took place within the “border bubble area”. However the cost payable would be unsustainable.
The expense of air travel would likely be impracticable and unsustainable for the father.
Whilst the mother is not required to demonstrate reasons for moving the children’s residence, she did so she says to protect them from the father’s alleged drug and alcohol abuse and exposure of the children to persons the mother considers unsuitable.
The mother is suggested to have had long knowledge of the above and remained in NSW.
Without testing her evidence and the evidence of the father, the genuineness of her reasons cannot at this stage be finally determined. Not that genuineness is a determinative factor, but it would have relevance in considering aspects of, for example, s.60CC(3)(i).
The mother says she has family and friends in Queensland. They provide no evidence of the support they offer to her. Nevertheless I do not reject the mother’s evidence about this factor.
She has long lived in the Region K and it seems has had support from others.
Disruption occasioned to the children by being required to move again is a factor raised by the mother.
Whilst undoubtedly disruptive emotionally, it is mitigated by the children being home schooled. For much of their day there would be no routine change, only household change and the persons in that house would not change. There would be no need to make new school friends either in the move initiated by the mother or on the move back, if so mandated. The “negotiations of the school yard” are not a factor for either X or Y.
Issues relevant to parental responsibility seem not to have created difficulties for the parents. Little evidence is directed by the parties to issues relevant to parental responsibility.
There is no evidence that persuades me that there is or enlivens any need to consider rebuttal of the presumption for equal shared parental responsibility.
The parents seem without rancour to have negotiated this aspect of their post separation parenting lives until the recent relocation to Queensland.
The children have never lived in an equal time arrangement and neither party seeks they now do so.
The father seeks significant and substantial time with the children, the mother’s proposal is silent.
The father and the children are well used to regular overnight periods of time with each other. Such frequency is not possible given where they currently live, but would be possible and practicable upon the children and the mother returning to live in the Region K.
A restraint on the father’s consumption of alcohol and marijuana when spending time with the children would remove any unacceptable risk for the children arising from time with their father.
It is not usual for a parent to be compelled to live at a location not of their choosing.
Border closures and COVID-19 travel restrictions in place since 20 August 2020 and quarantine requirements on re‑entry to Queensland from hot spot areas are the type of highly usual circumstances that warrant a “compulsion order”. Although these restrictions weren’t in place when the mother left NSW, their imminent imposition was known. The date of their total relaxation is unknown. The date of their total relaxation is unknown. Although there is a current proposal that unrestricted border access may start on 1 November 2020, provided there has been 28 consecutive days of no unexplained community transmission in NSW.
The children’s quality of relationship with their father would enable them to have time with him for a period, whilst the mother relocates herself, without suffering any detrimental consequence.
I am satisfied that by living with their mother in Queensland, the children would be denied the opportunity of a meaningful relationship with the father for an unknown time into the future, considering the Queensland COVID-19 health and travel restrictions. Communication time by telephone or video would be an extremely poor substitute for the relationships the children had with their father until late July or early August.
Despite their age the continuation of telephone or video time only with their father is contrary to their best interest even for a child of X’s age, but especially for Y.
A return for the mother to live in NSW would, I accept, involve some practical difficulty for her in repacking in travel and in sourcing new accommodation.
The father’s care of the children whilst the mother undertook those tasks would be helpful for her.
On balance it is in the children’s best interest if they return to live in NSW with their mother.
Whilst the mother relocates, the children could stay happily with their father, if she were unable to source accommodation within 21 days.
Upon the mother’s move back to NSW the children would again live with her and spend time with their father.
As they are home schooled and because the father has flexibility with work times, a period each alternate weekend from Friday to Monday from 2pm Friday to 9am Monday in week one and from Wednesday to Friday in week two, is in their best interest and reasonably practicable, provide the father works from home on Thursday and Friday each alternate week and the mother is living within 30 minutes or 30kms of Town B.
On balance, for the above reasons pending further order, these orders are in each child’s best interest and reasonably practicable.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Dunkley
Associate:
Date: 8 October 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Procedural Fairness
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Natural Justice
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