SIDNEY & ALLANSON

[2020] FCCA 3573

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIDNEY & ALLANSON [2020] FCCA 3573

Catchwords:
FAMILY LAW – Parenting – best interests of a child – concerning a child aged nine – where there are existing consent orders – where the father alleges the mother has unilaterally relocated the child – where the parties dispute whether there was a clear and settled arrangement about whom the child lives with – where further information required in order to reach conclusion about the best interests of the child in regard to whom the child lives with.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Goode & Goode [2006] FamCA 1346

Applicant: MR SIDNEY

Respondent: MS ALLANSON

File Number: DNC 79 of 2013

Judgment of: Judge Young

Hearing date: 8 December 2020

Date of Last Submission: 8 December 2020

Delivered at: Darwin

Delivered on: 8 December 2020

REPRESENTATION

Counsel for the Applicant: Mr Barry

Solicitors for the Applicant: Darwin Family Law

Counsel for the Respondent: Ms Storer

Solicitors for the Respondent: North Australian Aboriginal Family Legal Service

ORDERS

BY CONSENT UNTIL FURTHER ORDER:

1. That the orders made on 19 January 2016 in relation to school holidays be varied.

2. That school holiday arrangements shall be as follows:

   (a)That the child X (“X”) born in 2011 live with the father for the first half of the school holidays in even numbered years, and the second half of school holidays in odd numbered years

   (b)That the child live with the mother for the first half of the school holidays in odd numbered years, and the second half of these school holidays in even numbered years.

   (c)On Christmas Day and the child’s birthday, the child spend half a day with the other parent, if the parents are in the same location, and if the relevant parent gives at least 14 days notice.

3. That pursuant to s.11F of the Family Law Act 1975, the parties and the child X (“X”) born in 2011 to attend a reportable child inclusive conference with a Family Consultant provided by the Child Dispute Services of the Federal Circuit Court of Australia, Darwin on 8 March 2021 at 9.00am that the parties are to confirm their attendance to the Case Co-ordinator Child Dispute Services by email at [email protected] or alternately call 1300 352 000 fourteen days prior to the date of the interview and in the event such confirmation is not received the interviews will be cancelled NOTING that the family consultant is to have discretion as to how the parties attend.

4. That following thereof the Family Consultant provide a brief advice to the Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

5. That the matter be adjourned to 22 March 2021 at 11.00am for mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 79 of 2013

MR SIDNEY

Applicant

And

MS ALLANSON

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an interim application concerning a child, X, who is nine and a-half years old.  It is clear enough from the court file that orders were made between the parties on 19 January 2016.  It would appear that the parents have equal shared parental responsibility for the child and that the child lives with the mother.  There was provision for the mother to relocate to the Northern Territory in those orders. 

3. The Registrar made the orders on 19 January 2016 and indeed they were consent orders signed by the parties on 30 October 2015.  They are detailed final orders.  Though I am not told in any detail, it would appear that possibly soon after those orders were made, the mother relocated to City B.  The mother has a number of other children, two of whom are adult and three of whom are still infant children who are approximately 15, 13 and five years old. 

4. The parties also agree that in about the middle of 2019, I think it was probably during the mid-year holidays, it was agreed that X should go up to Darwin to live with his father.  The parties disagree whether that was a permanent or a temporary arrangement.  The mother gives very little information about what motivated her to propose that the child live with the father.  Even though her affidavit is largely silent on the question, her counsel said that the precipitating factor was the mother’s employment and apparently the demands of which made it difficult to care for the child. 

5. As she has three other children resident with her, one of whom is only five, it is a little difficult to understand that.  There may well be other reasons, I suspect.  Those reasons may well relate to the fact that X, it is agreed, suffers from Attention Deficit Hyperactivity Disorder (“ADHD”) and requires support and assistance through the education system and otherwise.  There is no real evidence about this, in fact, there is an unsatisfactory absence of evidence about what precipitated the move. 

6. It may be that the mother was having some difficulty managing the child.  I do not know.  In any event, I am satisfied that the mother proposed the child should live with the father and the father agreed.  The mother says that she negotiated that through Ms C, who is the father’s partner.  Be that as it may, it does not matter who it was negotiated with.  The agreement was that the child would live with the father and Ms B. 

7. So the child came to Darwin in mid-2019 and was enrolled in D School.  There is a text message dated August 2019, which would have been soon after the child moved up to Darwin, where the mother writes to Ms B and says, among other things, when she was asked for the child’s medication scripts:

   I did want X…

   That is a reference to the father –

   … to sign a statutory declaration explaining what our agreement is before I do all the paperwork, but we haven’t had a chance to have the meeting with X and discuss it.  As long as we are on the same page with everything and keep open communication, then I’m happy to do the paperwork.  

8. That is indicative of some agreement having been reached between the parties.  The reference to paperwork may well indicate that it was agreed that the child would permanently move to live with his father.  It is also consistent with an agreement that the move be temporary.  I do not believe I can reach any conclusion about that at the moment, though the reference to paperwork may well suggest that the agreement was to be more than temporary. 

9. Nevertheless, the tenor of the communications, and there is another SMS between the mother and Ms B from 10 January 2020, suggests that the mother was continuing to make the important decisions about the child.  She said:

   Hi Ms B, I have had a look at the program for X at the school in Darwin and it would look like it would be worth giving it a shot.  We will see how the first term goes and then go from there.  School holidays finish at the end of January, so I will bring him up then.  It will be hard for me, but I don’t want X to miss this opportunity.  We will talk soon.

10. The evidence from Ms B, and the father to some extent, is that at the end of 2019, the child was to be enrolled in a special program at D School, a program obviously to deal with his ADHD or his behavioural difficulties.  That SMS does not clearly suggest that the mother had agreed that the child should relocate permanently to Darwin.  It seems to me that that SMS is actually rather more consistent with the arrangement being temporary and the mother really leaving her options open.  All in all, I am not satisfied at this stage that the agreement was for a permanent move or, indeed, a temporary move.  I do not know. 

11. The mother says that in about July or August 2020, in other words well past first term, the child was spending school holiday time with her.  She says in her affidavit that the child would complain that the father uses the strap on him, but there is no further affidavit material about that.  The mother also suggests that, in August, she had asked the father if he would agree to have the child travel with the mother and her other children to City E for a festival, suggesting that the father’s refusal had something to do with her decision. 

12. In any event, it is not in dispute that, when the child came to spend time with her in August 2020, she unilaterally withheld the child and refused to return the child to the father.  She then enrolled the child in F School in City B, where the child is still enrolled.  I might say that was the school the child was attending last year before he moved to Darwin in what appears to be the mid-year holidays.

13. So, all in all, the child was living with his father in Darwin for a little more than 12 months.  Mr Barry, acting as counsel for the father, suggests, with reference to the Full Court case Goode & Goode [2006] FamCA 1346, that where a child is in a stable arrangement, that arrangement should not be disturbed by a unilateral relocation and he describes what happened here as a unilateral relocation. To some extent, it was a unilateral relocation, but in a context where there are existing current orders, made relatively recently at the beginning of 2016, that the child live with the mother. I do not think the situation is the same as Goode & Goode or the other cases that have been referred to which note the undesirability of disturbing settled arrangements at an interim hearing. 

14. I am not satisfied that there is or was a clear and settled arrangement for this child at the time that the mother refused to return him.  I think it reflects poorly on the mother that she acted as she did without discussion with the father, acting unilaterally by simply refusing to return the child.  Even if I accept what she says, that is, that the arrangement was always temporary, the fact is that it had been extended for a considerable period, more than a year it would appear.  It is difficult to see how it is in the child’s best interest that she should, without any discussion with the father, simply act unilaterally.  As I say, it reflects poorly on the mother, in my view. 

15. Be that as it may, neither party suggests that there are current risk issues, though the matter has referred to the strap issue.  I notice the father, even though the father’s counsel said there were no current risk issues, the father’s affidavit alleges that the mother’s current partner has criminal convictions for methamphetamine use and other offences. 

16. Given that I do not feel able to make or reach any particular conclusions about the best interests of the child in this scenario where there is an arrangement that has been in place for 12 months, even though the terms of which are subject to dispute and which I am not satisfied was a settled arrangement, nevertheless, it was an arrangement and where there are existing parenting orders from 2016 and, furthermore, where there has been a delay by the father in making his application so that the child has been enrolled in a school in City B since the beginning of September, I do not propose to make the order the father seeks for the child to be returned to him.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 19 January 2021