Semper & Cross
[2022] FedCFamC2F 1591
Federal Circuit and Family Court of Australia
(DIVISION 2)
Semper & Cross [2022] FedCFamC2F 1591
File number(s): ADC 4348 of 2022 Judgment of: JUDGE DICKSON Date of judgment: 11 November 2022 Catchwords: FAMILY LAW – Parenting – interim hearing – unilateral relocation by the mother to City B approximately 388 km from the city in which the parties formally lived – three year old child – consideration of the best interests of the child – equal shared parental responsibility – where the mother has alleged family violence perpetrated by the father – where the parties have not yet participated in mediation – interim orders for time spending – interim orders returning the child to Adelaide pending Trial Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 69ZL Cases cited: AMS & AIF (1999) FLC 92-852
B & B (1997) FLC 92-755
Campbell & Spalding [1998] FamCA 66
Goode v Goode (2006) FLC 93-286
Morgan & Miles [2007] FamCA 1230
Division: Division 2 Family Law Number of paragraphs: 77 Date of hearing: 10 November 2022 Place: Adelaide Counsel for the Applicant: Mr Dillon Solicitor for the Applicant: AM Legal Counsel for the Respondent: Ms Bailey Solicitor for the Respondent: Legal Services Commission of South Australia Solicitor for the Independent Children's Lawyer: Mr Charman ORDERS
ADC 4348 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SEMPER
Applicant
AND: MS CROSS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE DICKSON
DATE OF ORDER:
11 NOVEMBER 2022
UPON NOTING THAT the proceedings were conducted by telephone and in person
THE COURT ORDERS BY CONSENT THAT:
1.Until further order the parties have equal shared parental responsibility for the child X born in 2019 (“the said child”).
2.The parties and legal representative (and the Independent Children’s Lawyer) attend a Family Dispute Conference at the Legal Services Commission of South Australia on 6 February 2023 at 1:30pm and the parties are directed to attend at the said Family Dispute Conference in person.
UPON NOTING that in the event that the parties are seeking an extension of legal aid funding to attend the Conference, they forward a request for an extension of funding to the relevant assignments officer at the Legal Services Commission of South Australia within forty eight (48) hours of the date of this order.
3.The parties, or their solicitors, each forward to the Legal Services Commission of South Australia, Family Dispute Resolution Unit, within seven (7) days of this Order the following:
(a)a copy of the said Order; and
(b)the current contact details of the parties (including current postal and telephone details).
4.The parties, or their solicitors, forward to the Legal Services Commission of South Australia Family Dispute Resolution Unit, at least twenty-eight (28) days prior to the date of the Conference, a copy of all documents filed with the Court on their behalf.
AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER:
5.That no later than 9 December 2022 the mother do return the said child to reside principally within the metropolitan area of Adelaide.
6.The mother do notify the father within 24 hour of returning the said child’s principal place of residence to the metropolitan area of Adelaide pursuant to paragraph 5 herein.
7.The said child do live with each of the parties as follows:
(a)With the father from 1:00pm on Saturday 12 November 2022 to 1:00pm on Monday 14 November 2022.
(b)Thereafter each weekend from 1:00pm Friday to 1:00pm Monday of each week.
(c)With the mother at all other times unless otherwise agreed in writing between the parties.
8.For the purposes of Christmas Day 2022, being Saturday 25 December 2022, the father’s time with the child pursuant to paragraph 7b herein do conclude at 3:00pm on Saturday 25 December 2022.
9.Unless otherwise agreed in writing between the parties all handovers do take place at McDonalds Restaurant, Suburb C.
10.On a without admissions basis the parties are restrained and injunctions are hereby granted restraining each of them from:
(a)Discussing these proceedings or the allegations raised in these proceedings in the presence or hearing of the said child or from allowing anyone else to do so;
(b)Denigrating the other party, the other party’s partner or the other party’s family in the presence or hearing of the said child or from allowing anyone else to do so;
(c)Abusing, threatening or harassing the other party or from allowing anyone else to do so on their behalf;
(d)Exposing the child to family violence;
(e)Exposing the child to illicit substance abuse;
(f)Consuming illicit substances whilst the said child is in their respective care;
(g)Changing the said child’s principal place of residence from the metropolitan area of Adelaide pending Trial;
(h)Enrolling the child in any child care or educational facility such as kindergarten or school without the other party’s prior written consent having first been obtained.
11.All interim applications are dismissed.
12.The parties competing applications be adjourned to 28 February 2023 at 9:30am for directions such hearing to take place on a face to face basis in accordance with the Court protocols.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Semper & Cross has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex tempore reasons settled from transcript)JUDGE DICKSON:
INTRODUCTION
These short form reasons for judgment pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’) were delivered orally following the hearing between the parties concerned. These reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
The reasons are also provided, having regard to the Full Court decision in Goode & Goode,[1] as to the legislative pathway applicable to parenting cases either on an interim or final basis.
[1] Goode v Goode (2006) FLC 93-286 [82].
BACKGROUND
The proceedings concern involve competing parenting applications between the parents of one child, X born in 2019 (‘the child’). The child is now just over three years of age.
The parents of the child are the father, Mr Semper born in 1995 currently aged 27 years, and the mother, Ms Cross born in 1994 currently aged 28 years.
The father is a self-employed tradesman and resides at Suburb D.
Currently and more recently, from 19 September 2022, the mother has resided in City B with her mother and her mother’s partner. The mother is employed with Employer E, working as an allied health worker for 16 hours per week.
The parties are in broad agreement that they commenced a relationship in late 2018 before commencing cohabitation.
The parties are in dispute with respect to the precise dates of various separations and reconciliations which occurred across the currency of their relationship. More recently, the father says that the parties separated for the final time following an incident which occurred in the presence of the child on 23 December 2021.
The father says that following separation on that date, the child broadly lived between the parties in the following manner:
(1)with the father from Friday to Monday of each week; and
(2)with the mother for the balance of each week.
This arrangement is agreed in paragraph 39 of the mother’s affidavit filed on 17 October 2022 (‘the mother’s affidavit’).
There is a factual dispute between the parties with respect to additional time that the father says was afforded to him caring for the child prior to the mother relocating to City B. I am not in a position today to determine the truth or otherwise of the parties’ respective positions regarding time spending outside of the agreed amount of Friday to Monday of each week. I am satisfied, for the purposes of this hearing that the child has been cared for by each of his parents since 23 December 2021 and that the parties have been able to broadly agree arrangements for his care.
The mother contends in her affidavit, that the parties subsequently reconciled their relationship in or about August of this year and that the parties would thereafter spend time with each other in their respective homes. The mother deposes, in her affidavit,[2] that the father had not informed members of his family with respect to the additional time that they were spending with one another. For the purposes of today’s hearing I do not consider this issue determines the matters that I am required to address in relation to interim arrangements for the child pending Trial.
[2] See Affidavit of the mother filed at 17 October 2022 at paragraph 42.
It is agreed between the parties that the mother informed the father, via communication between them, that she wished to move to City B.
In the father’s affidavit filed 22 September 2022, in paragraph 59 the father deposes as follows:
For a few months, the mother has been saying she was going to move to [City B] to obtain the support of her mother.
The mother agrees that she provided notice to the father,[3] and it was one of the submissions made by counsel on behalf of the mother, namely that the father had been on notice of the mother’s intended relocation to City B with the child and that he should therefore not have been surprised when that relocation was put in to practical effect on 19 September 2022.
[3] Ibid at paragraph 47.
The father’s position is that whilst he understood in broad terms that the mother wished to move to City B, the relocation of the child some 388 kilometres away from Adelaide was not a matter to which he agreed and that the parties had therefore entered in to mediation to try to resolve the arrangements for the child.
Subject to exceptions as to urgency, the parties are required under the Act to have mediation before they file parenting proceedings. To that extent, the parties were undertaking the pre-filing steps which are required of all litigants in this Court. It was in the face of an appointment having been scheduled on 26 September 2022, where the parties were to attend a joint mediation session, that the mother determined to relocate to City B with X on 19 September 2022.
On 22 September 2022, the father filed his application seeking urgent orders for the return of the child to the metropolitan area of Adelaide. Therefore, it cannot be said that the father has been tardy in bringing his application seeking to return the child to Adelaide pending Trial.
The hearing before the Court did not ultimately take place until 10 November 2022. The delay, at least on one occasion, being caused through no fault of the parties and due to a professional conflict which arose following the order for the appointment of an Independent Children’s Lawyer. The Court is satisfied, however, that the father brought his application promptly and that the mother was on notice from the time that she was served with the father’s application after it was filed on 22 September 2022, that the father sought to agitate the issue of the mother’s return to Adelaide or, in the alternative, for the child to return if the mother elected to remain residing with her family in City B.
For her part, the mother now seeks to remain residing in City B with the child pending Trial. The mother has put forward a proposal which I will come to shortly setting out the arrangements that she proposes for time spending between the child and the father pending a final hearing. In the alternative, the mother instructed her counsel, during the course of argument, that if the child was returned to reside in Adelaide, she would follow.
It is in this setting that the Court is being asked to determine interim arrangements for the child in a situation of urgency and contested fact where the parties are now in high conflict with one another regarding the child’s arrangements pending Trial.
DOCUMENTS RELIED UPON IN THE HEARING
The father relied upon the following documents:
(1)Initiating Application filed 22 September 2022;
(2)Affidavit in Support filed 22 September 2022;
(3)Affidavit filed 17 October 2022;
(4)Outline of Case Document filed 19 October 2022;
(5)Affidavit filed 4 November 2022;
(6)Affidavit of Ms Murray, Solicitor, filed 9 November 2022;
(7)Notice of Child Abuse, Family Violence or Risk; and
(8)Parenting Questionnaire.
The mother relied upon the following documents:
(9)Response to Final Orders filed 17 October 2022;
(10)Affidavit in Support filed 17 October 2022;
(11)Parenting Questionnaire filed 17 October 2022;
(12)Summary of Argument filed 18 October 2022;
(13)Notice of Child Abuse, Family or Risk filed on 17 October 2022; and
(14)Affidavit of Ms Worth, Solicitor, filed 7 November 2022.
In addition, I have had regard to information provided to the Court by the South Australian Police (‘SAPOL’) and the Department for Child Protection in South Australia (‘the Department’) pursuant to material provided to the Court by the co-located embedded officers.
SAPOL and DCP materiaL
Material from the Department for Child Protection
The Court has considered the material provided by the Department in correspondence to the Court dated 7 October 2022 and 20 October 2022 respectively.
The information provided by the Department confirms that there have been notifications made to the Department in relation to the child. However, those notifications were assessed as notifier concern only and the Department does not have a current open case in relation to the care of the child.
To a large extent, the notifications reflect the matters raised by the parties in their respective notices of risk and in their initial affidavits.
Material from the South Australian Police
I have also had regard to the SAPOL co-located information release dated 27 September 2022.
That information confirms historical matters relating to drugs involving the father, in 2014 at which time the father was convicted of various drug offences and sentenced to two years imprisonment, such sentence being suspended upon him entering in to a bond for a period of two years.
In relation to the mother, there was a conviction history in 2012 in relation to drive with excess blood alcohol and contravening a condition of a provisional licence.
In relation to matters pertaining to both of the parties in this matter, there is the following information provided:
(1)A domestic abuse no offence recording dated 13 September 2022 in relation to an incident which occurred at handover;
(2)A domestic abuse offence dated 23 December 2021 relating to the incident which occurred at the parties’ joint residence, resulting in a subsequent separation between the parties. The entry confirms that the father instructed the police on this occasion that he did not wish to press any charges or police action in relation to his allegation that he had been assaulted by the mother in the presence of the child;
(3)The third entry is dated 6 August 2020 and relates to a domestic abuse call centre entry whereby the mother telephoned the police in relation to alleged ongoing domestic abuse said to be perpetrated by the father. The mother alleged that the father was abusive due to his ongoing drug use and erratic behaviour. On this occasion, advice was provided and the outcome is recorded as finalised; and
(4)The final entry is dated 2 August 2020 and is entitled Street Check. This relates to a call made by the mother in relation to a handover with the father on that occasion. Both parties were interviewed and the entry records the following:
Both parties were aware that the relationship was over and appeared to be capable of communicating civilly via phone. Both parties stated that there had never been any physical altercations between them and their issues had been purely verbal.
Based on the above, it appears that the parties have had something of a tumultuous relationship with various separations and reconciliations occurring.
ORDERS SOUGHT BY THE PARTIES
By the father
The father only faintly pressed the orders sought by him in his Initiating Application filed 22 September 2022 for the child to be delivered up to him and for the child to reside with him and for the mother to spend time for two nights per fortnight.
Counsel on behalf of the father put forward the following proposals at the hearing:
(1)That if the child was ordered to return back to reside in the Adelaide metropolitan area and if the mother followed, the father proposed:
(a)That the status quo ante be reinstated, namely that the child live with him from 1 pm Friday to 1 pm Monday of each weekend and with the mother at all other times;
(b)The father proposed that the handovers occur at his residence at Suburb D;
(c)The father proposed that for Christmas Day 2022, the child spend time with the mother from Christmas Eve to after lunch on Christmas Day and with the father from after lunch Christmas Day to until Boxing Day.
(2)In the alternative, and in the event that the child was returned to reside in the metropolitan area and the mother remained living in City B, the father proposed:
(a)That the child live with him;
(b)That the mother spend time with the child each alternate weekend from Thursday to Monday; and
(c)That handovers occur at the BP Roadhouse, Town F.
(3)Further, or in the alternative, in the event that the child was permitted to remain living with the mother in City B pending Trial, the father sought the following:
(a)That the child live with him five nights per fortnight from Wednesday to Monday of each alternate week;
(b)That handovers occur at his residence at Suburb D;
(c)That the child spend time with the mother on Christmas Eve and Christmas Day and commence time spending with his father on Boxing Day.
By the mother
The mother sought orders both as set out in her Outline of Case and through submissions by her counsel.
Primarily the mother sought the orders as set out in the Outline of Case, being:
(1)That the child live with her;
(2)That the child spend time with the father each alternate week from 1 pm Thursday to 1 pm Monday;
(3)That the child spend time with the father on Christmas Day from 3 pm until 3 pm on New Year’s Day;
(4)That handovers occur at the Town G Roadhouse;
(5)The mother sought a series of mutual injunctions as set out in paragraph 4.5 of her minute, which I do not propose to read for the purposes of these reasons.
The mother’s alternate position was as follows:
(1)That if the child is ordered back to reside in Adelaide, then he spend time with the father in each alternate week from 1 pm Thursday to 1 pm Monday; and
(2)That handovers occur at the McDonalds restaurant, Suburb C.
The reason why the mother had altered her offer from the previous arrangement of Friday to Monday each week to propose alternate arrangements, resulting in a long hiatus between time spending between the child and his father and in a reduction in time between the child and his father, was not articulated to the Court.
The Court made it clear to the mother’s counsel that if it was considered by the mother that she could travel backwards and forwards between City B and Adelaide in order to facilitate time in a block format each fortnight, then that was not an arrangement which would be countenanced by the Court. I propose in due course to make orders addressing that possibility in the event that either party considered that they could side-step the orders of the Court and thus frustrate the intention of those orders pending Trial.
At the hearing, the mother’s counsel initially submitted to the Court that the mother would not return to reside in Adelaide if the child was so ordered.
Counsel for the mother subsequently sought an opportunity to take instructions during the course of argument, such opportunity being afforded given the significance of that particular issue.
When the matter was recalled, the mother’s counsel submitted that she now held instructions that if the child was ordered to return to reside in Adelaide, then the mother would follow. The mother still maintained, however, that time should occur for block periods each alternate fortnight and that there be no reversion to the previous three nights per week.
It was however an important submission to make on behalf of the mother, namely that she would return to reside in Adelaide pending Trial if that was the order of the Court.
LEGAL PRINCIPLES
Pursuant to section 60CA of the Act, the service of the child’s best interests is the most important consideration in this case. The same principles are said to apply both at the interim and final stage. The distinction obviously is that interim hearings do not determine final and long-term arrangements in relation to children, whereas final proceedings do.
The Court is being called upon to make an urgent decision in relation to the child’s interim care in circumstances where the parties have diametrically opposing opinions as to what arrangements would serve the child’s best interests.
The aims and principles of the Act are set out in section 60B of the Act. Those aims and principles direct me to consider the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they spend with their child, commensurate with the need to protect the child from physical or psychological harm or from being exposed to abuse, neglect or family violence.
Parental Responsibility
The starting point for the Court’s consideration, as it is in any parenting order, is to consider whether the parents concerned should have equal shared parental responsibility. This is set out in section 61DA of the Act.
In this case, the mother’s interim orders paragraph 1 propose that the parties have equal shared parental responsibility for the child. That is an order that the father willingly consents to and accordingly the Court is not required to determine whether or not the presumption of equal shared parental responsibility is rebutted.
Shared Care Arrangements
The Court is then directed to consider whether or not there should be a shared care arrangement for the care of the child or, in the alternative, whether or not the child should spend substantial and significant time with one parent whilst residing predominantly with the other.
In considering the child’s best interests, the Court is directed to a list of matters set out in section 60CC of the Act.
At first instance, there are two categories of matters that the Court must consider, namely the primary considerations and the additional considerations. There are two primary considerations being:
(1)The need to ensure that the child has a meaningful relationship with both of his parents; and
(2)The need to ensure that the child is protected from harm - both physical and psychological harm – which may arise if the child concerned is exposed to any kind of abuse, neglect and family violence.
Section 60CC(3) of the Act sets out the additional considerations which are more numerous.
Although the primary considerations are usually required to be given more emphasis, arising as they do from the aims and principles set out in the Act, in determining the outcome of any particular case, one or more of the additional considerations may come to the fore.
Given that the parties are consenting to an order for equal shared parental responsibility, the Court is now required to consider whether or not an order should be made for equal shared care or alternatively, if the Court considers that equal shared care is not in the child’s best interests, whether or not the child should spend substantial and significant time with the other parent concerned.
In considering equal periods of time or substantial and significant periods of time, the Court must consider and be satisfied of two criteria. First, the Court must be satisfied that the arrangements are likely to be in the best interests of the child concerned, as set out in section 60CC, and secondly, whether or not the arrangements are likely to be reasonably practicable to be put in to operation, as set out in section 65DAA of the Act. Section 65DAA(5) addresses the issues of practicality. The Court is required to consider how far apart are the parties’ homes, the parties’ current and future capacity to implement shared-care type arrangements, their ability to communicate with one another and solve problems by mutual agreement and, most importantly, the likely impact of such arrangement on the children concerned.
Given the aims and principles of the Act, cases involving one parent wishing to move a significant distance away from the other parent concerned raises important issues for the Court.
Such cases throw up competing principles which, at least on an interim basis, can be very difficult to reconcile. The Act does not set out that parties who have separated from one another are not able to make decisions regarding their future and enables them to lead separate lives from one another. There is no principle of law that requires separated parents to live in close proximity to one another for the balance of their natural lives.
On the other hand, the principles and aims and objects of the Act set out that there is an entitlement of a child to have a meaningful relationship with each of his or her parents, regardless of the fact that the parties’ relationship has broken down. In the face of these important considerations, the Full Court has reflected, in the unreported decision of Campbell & Spalding that relocation cases require careful analysis.[4]
[4] [1998] FamCA 66.
Accordingly, it is the usual practice of the Court that it is considered preferable for cases involving matters of relocation not to be decided at an interim stage, particularly in circumstances where decisions regarding relocations may have potential serious ramifications for a child and those ramifications take on greater weight when a child is of a tender age.
Furthermore, each case involving a proposal to remove a child from a particular location in which he or she lives is different and each case will require careful analysis and consideration by the Court after hearing the parties give evidence and importantly after having consideration given to the child’s best interests by a Court Child Expert.
The careful analysis of relocation matters comes about in circumstances where, as was stated by the Full Court in the decision of B & B that the tyranny of distance develops by degrees.[5] As the Court observed in the decision of Morgan & Miles,[6] it is artificial in the extreme to determine a case which involves issues of relocation on the basis of distance alone. What is important is the consequences of a move or proposed move for any child affected by it.[7]
[5] (1997) FLC 92-755.
[6] [2007] FamCA 1230.
[7] Ibid.
It must be said that the consequence of any proposed move does not turn on distance alone. The Court must carefully consider all of the factors involved, including financial considerations in relation to whether or not parties will be able to facilitate time spending if a relocation some significant distance away is to be countenanced by the Court. A return to the previous status quo is the most sensible arrangement in the short term.
In this case, I am yet to receive any evidence in relation to the ability of these parties in the longer term to promote and support an arrangement which would see a three year old child travelling 388 kilometres from Adelaide to City B on a regular basis in order to maintain a relationship with his father and paternal family if the mother’s interim application for relocation is approved by the Court.
Furthermore, the provisions of the Act confirm to my mind the importance of consideration on the facts of this case of the child maintaining a meaningful relationship with both of his parents.
Whilst each of the parties have raised issues regarding what would fall within the definition of family violence as set out in section 4AB of the Act, the fact remains that the mother has proposed, notwithstanding those allegations, an order on an interim basis for equal shared parental responsibility. I think in those circumstances, the Court is entitled to infer and to proceed on the assumption that the mother does not consider that those allegations and incidents are of such significance or weight to prevent an order for equal shared parental responsibility being made by consent on an interim basis.
The proposed order for equal shared parental responsibility has significance in terms of the pathway that the Court must consider in relation to the child’s best interests. The Court determines, in this case, that as the parties have never had a strict shared-care arrangement on a week-about basis, that a week-about basis arrangement for the child, whether it be the mother remaining in Adelaide or in City B, is not in the child’s best interests. Rather, the Court considers the proposal put forward by each of the parties for the child to spend what would be described as meaningful time and substantial and significant time with each of his parents is the proper pathway forward for the child pending Trial.
At Trial, the Court will not ignore the mother’s entitlement to freedom of movement. However, given the more limited evidence available at this interim stage, I feel compelled to exercise considerable caution in relation to permitting a unilateral relocation to City B, particularly where the evidence before me is provisional and untested.
In making those remarks, I note the previous comments which have fallen from the Full Court in the decision of Campbell & Spalding,[8] that it is preferable for a Court to consider issues of relocation not against a background of recent development, particularly where a relocation will alter the relationship of a child concerned in relation to one or other of his or her parents and this is particularly so where the recent development has been created by the actions of one parent alone.
[8] [1998] FamCA 66.
In this case, whilst I accept that the mother had raised with the father her aim and desire to move back to City B, the parties had commenced mediation to discuss arrangements for the child’s parenting. The Court is entitled to infer that the question of whether or not the mother would be permitted, with the father’s consent, to relocate to City B with the child was a very important topic to be discussed at the impending mediation appointment scheduled for 26 September 2022. It seems to me therefore, in those circumstances, that it was a rash decision for the mother to organise to move to City B without the father’s acquiescence.
In those circumstances, the father’s filing of an application within days of the mother having relocated to the child could not have come as a surprise to her. Although I am not in a position today to full appraise the potential impact of a distance of approximately 388 kilometres upon the child, the Court considers that given his young age and likely level of development, such a distance will have significant consequences for the child’s ability to spend time with his father in the longer term. It can be observed that whilst the child is not attending at kindergarten or school, time arrangements can be facilitated far more easily notwithstanding the distance between the parties.
This will not be the position upon the child commencing at kindergarten at school in the next year or so. That will mean that the question of the child’s living arrangements takes on particular significance in the longer term. It must be acknowledged that if the mother is able to remain in City B on an interim basis, then the longer the child cements himself in the City B area, this is likely to have a significant outcome on the final arrangements for the child at Trial. The major difficulty with the mother’s position is that she has in effect presented both to the father and to the Court what could only be described as a fait accompli.
If her application is granted at this interim stage, the Court will be denied an opportunity of close and delicate analysis which must apply in relocation cases as the High Court directs me to do in the decision of AMS & AIF.[9]
[9] (1999) FLC 92-852.
It could be argued that if the mother’s application at this interim stage were acceded to a final hearing of the parties’ competing applications is likely to be rendered otiose. The Court must, at this interim stage, exercise great caution in respect of any action which occurs unilaterally, independently of the other party concerned unless there is some compelling reason pertaining to the child’s welfare or matters relating to family violence which would warrant such a unilateral relocation.
CONCLUSION
The Court does not consider that those sorts of circumstances exist on the facts of this particular case. Therefore having considered the section 60CC criteria and bringing to account the pathway in the decision of Goode & Goode,[10] and for the reasons set out herein, I have come to a conclusion on an interim basis that the child should return to reside in the Adelaide area pending final hearing.
[10] (2006) FLC 93-286.
I acknowledge that this decision is likely to cause the mother distress and inconvenience. However, the mother was on notice that the relocation application was a matter up for discussion at mediation. The mother’s precipitous decision to relocate to City B with the child prior to the parties having an opportunity to discuss those issues has now resulted in the parties entering in to an adversarial setting as opposed to a mediated setting which was the pathway initially adopted by the parties in early September.
Regrettably therefore, the mother is likely to be resentful of the orders made by the Court this day. I propose moving the matter forward as expeditiously as possible, acknowledging that the mother has a right to freedom of movement. The issue is not ‘if’ but ‘when’, and of course that will have a cumulative impact in relation to the living arrangements for the child. Any decision which countenances the mother living in City B pending Trial with the child at this interim stage is likely to have a deleterious effect on the case when it reaches Trial next year.
For all of those reasons, the Court makes the orders as set out at the commencement of these Ex Tempore Reasons for Judgment.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Dickson. Associate:
Dated: 11 November 2022
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