STURTON & CELLAR

[2020] FamCA 335

FAMILY COURT OF AUSTRALIA

STURTON & CELLAR [2020] FamCA 335

FAMILY LAW – CHILDREN – Interim – Where a child shall live pending final hearing – Where the mother made an urgent application to the Court seeking an order that she be permitted to relocate from the B Region to New Zealand with the child on an interim basis pending trial, or in the alternative, that the matter be set down for trial on an urgent basis – Where the mother, pending the Court’s consideration for listing of her urgent application, unilaterally relocated with the child to New Zealand – Where the father lives in Western Australia and has flown to see the child in the B Region on a regular basis – Where the mother asserted that the current coronavirus pandemic has impacted on the mother’s ability to financially support herself whilst living in the B Region and that the travel restrictions imposed in response to the pandemic prevented the father from travelling to spend time with the child in any event – Where there is evidence that there are exemptions to the travel restrictions for the purpose of complying with Family Court orders such that the father will be able to travel to spend time with the child – Where the mother is ordered to return the child to Australia and the child shall live with her, in the B Region, if she chooses to also return to Australia, or will live with the father in Perth, Western Australia should she choose to not return with the child – Where the matter will be listed for trial to commence in approximately eight weeks.

Family Law Act 1975 (Cth)

APPLICANT: Ms Sturton

RESPONDENT: Mr Cellar

INDEPENDENT CHILDREN’S LAWYER: Julie Harrington

FILE NUMBER: BRC 6743 of 2018

DATE DELIVERED: 6 May 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 16 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Oakley

SOLICITOR FOR THE APPLICANT: Piper Craig Lawyers

THE RESPONDENT: Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Harrington

Julie Harrington Solicitor

Orders

1. That the mother return the child, X born … 2017, (“the child”) to Australia within seven days of the date of these Orders.

2. That should the mother return to Australia with the child, then the child shall continue to live with the mother in the B Region until further order.

3. That should the mother not return to Australia with the child, then the child shall live with the father in Perth, Western Australia, until further order.

4. That the time that the child shall spend with the father shall be as provided for in paragraph (3) of the Orders made by Judge Coates of the Federal Circuit Court on 31 July 2018, save that the time provided for in sub-paragraph (b) thereof shall be varied to daily contact of up to eight (8) hours per day to a maximum of seven (7) days in every fourteen (14) day period.

5. That there shall be no change to the communication between the child and the father provided for in paragraph (3)(c) of the Orders made by Judge Coates on 31 July 2018.

Trial Directions

1. That the matter be listed for trial before His Honour Justice Forrest commencing at 10.00 am on Monday, 6 July 2020 with an estimated hearing time of three (3) to four (4) days.

2. That leave is granted to the parties to, by 4.00 pm on Friday, 19 June 2020, make, file and serve one affidavit of the persons who are to be their witnesses at the trial, including the parties themselves.

3. That should the father wish to rely upon the affidavit of any of person who has already provided a sworn affidavit filed by the father in these proceedings he shall be entitled to do so without having to refile such affidavit or a fresh affidavit from such witness, but he shall inform the mother’s solicitors and the Independent Children’s Lawyer in writing before 4.00 pm on Friday, 19 June 2020 of his intention to do so.

4. That should the parties not agree on the values of any property of the parties or either of them by 4.00 pm on Friday, 22 May 2020, they shall cause single expert valuation evidence of such values to be obtained, attached to affidavits of the expert valuer/s and filed by 4.00 pm on Friday, 19 June 2020.

5. That the cost of any such single expert valuation evidence shall be met by the father in the first instance with the final responsibility for those costs to be determined by the Trial Judge.

6. That leave is granted to the Independent Children’s Lawyer to cause an updating Family Report to be prepared by Ms D if the Independent Children’s Lawyer determines it is necessary and such shall be attached to an affidavit of Ms D and filed and served by 4.00 pm on Friday, 19 June 2020 if it is to be obtained.

7. That the mother and the father shall follow the directions of the Independent Children’s Lawyer in respect of attendances upon Ms D in the event that an updated family report is to be obtained. 

8. That the cost of any updating Family Report by Ms D shall be paid by the father in the first instance with the final responsibility for those costs to be determined by the Trial Judge.

9. That except as already provided by these Orders, the parties shall not file any further affidavits, and may not rely upon any past affidavit, without the leave of the Court.

10. That no later than 7 days prior to trial the parties shall make, file and serve a Case Outline document containing:

    (a)       A list of all affidavits they rely upon;

    (b)       A relevant chronology;

    (c)       A summary of argument;

    (d)A minute of the orders that each will be contending the Court should make at the end of the trial.

11. That leave is granted to the Independent Children’s Lawyer to cause any further subpoenas to issue from the Court that she determines necessary.

12. That each of the parties has liberty to restore the Trial Management of this matter to the list for hearing by Justice Forrest on three (3) days’ notice to the other parties.

13. That the matter is listed for a compliance hearing at 9.30 am (Brisbane time) on Thursday, 25 June 2020 at which all parties have leave to attend by telephone should they so elect, with that election to be confirmed with the Associate to Justice Forrest at least one day in advance of that hearing by email (to: …@familycourt.gov.au).

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sturton & Cellar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6743 of 2018

Ms Sturton

Applicant

And

Mr Cellar

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The child who is the subject of these proceedings is two years old, and is soon to turn three. Her parents met in Country E, commenced a relationship and began living together as a couple in or around the middle of 2016. Her father (“the father”) is an Australian. Her mother (“the mother”) is a New Zealander. The early days of their relationship as a couple revolved around some plans by the father to establish a resort on some land he leases in Country E and sailing a boat between Country E and Australia, as I understand the evidence. The mother’s pregnancy and the birth of the child in … 2017 brought about a change in those plans, at least for a time.

2. The former couple married a month after the birth in … 2017. At that time, they were living in Perth in Western Australia. However, their relationship did not last very long, breaking down in the first half of 2018. Around that time, the mother had gone back to New Zealand, taking the child with her. She returned with the child to Australia soon after, taking up residence in the B Region. She then commenced proceedings in the Federal Circuit Court seeking parenting orders, most particularly permission to relocate the child permanently to New Zealand with her to live there in the same place as her family.

3. By Orders consented to by the father and the mother, Judge Coates of the Federal Circuit Court provided for the child to live with the mother, for the parents to have joint parental responsibility for the child and for her to spend time with the father for two hours on three days per week or, if he was not able to do that (such as with her living with the mother in the B Region and the father living in Perth) then on seven days’ notice to the mother, for up to four hours per day to a maximum of eight days in every fourteen day period.

4. On 3 October 2018, Judge Coates heard competing interim applications of the parties. The father wanted orders transferring the proceedings to the Family Court of Western Australia and returning the child to live in Perth, with the mother, if she moved to Perth, but with the father if the mother did not move. The mother wanted orders that permitted her to move with the child on an interim basis to live in New Zealand, asserting that she would return to Australia for the trial of the competing applications for final orders when that was set down.

5. Both of those competing interim applications were dismissed and the mother was restrained from permanently removing the child from Australia until further order, with an order made also appointing an Independent Children’s Lawyer (“the ICL”) to represent the child’s interests in the proceedings and an order made for the preparation of a family report to assist the parties and the Court.

6. Around that same time, the mother filed an amended Application seeking final property adjustment orders as well. Judge Jarrett transferred the proceedings to this Court in March 2019 and by March 2020 this international relocation/property adjustment matter had not yet reached the docket of a trial judge in this Court’s Brisbane Registry.

7. Despite the fact that he lives in Perth and the child has been living with the mother on the east coast of Australia, the father has apparently been very committed to maintaining a relationship with the child. He has regularly flown across to Queensland and spent time with the child as permitted by the Orders. There is evidence that since September 2019, at least, he has come across and had the child spend time with him between 26 September to 3 October, 13 October to 17 October, 22 November to 25 November, 13 December to 16 December, 24 December to 28 December 2019 and then 31 December 2019 to 2 January this year and from 6 February to 14 February.

8. Against that factual background, the mother instructed her solicitors to prepare and file another Application in a Case seeking orders that she be permitted to relocate to New Zealand with the child on an interim basis and to return to Australia seven days prior to the final trial of this matter (though that had not yet been set). The Application and a supporting affidavit were prepared and affirmed by the mother on 20 March 2020. In the Application in a Case, the mother sought an alternative order to be made in the event that she was not permitted to relocate on an interim basis. That order was that the matter be set for trial on an urgent basis.

9. The documents were forwarded by the mother’s solicitors for filing with the Court and for consideration for listing by a Judge for urgent hearing. They were brought to me and I listed the matter for hearing on Thursday, 16 April after I had returned from some leave taken around the Easter Public Holidays. The documents were formally digitally filed in the Court on 25 March 2020 and returned to the mother’s solicitors for service on the father.

10. On 9 April 2020, the mother’s solicitors caused another affidavit of the mother (unsworn) to be filed with the Court. In that affidavit, the mother deposed to having “returned to New Zealand” with the child on 24 March 2020. That was during the time that her Application in a Case for an order permitting her to relocate the child to New Zealand on an interim basis was being considered for urgent listing at her request and before her solicitors were even informed of the outcome of their request for an urgent hearing.

11. In her affidavit, the mother asserts that her decision was made because of the Coronavirus pandemic and the restrictions the New Zealand Government and the Western Australian Government announced that they were about to put into place on 25 March and 24 March respectively. The mother said:

    I made an assessment of risk to [the child] and my living situation in F Town and acted in the best interests of [the child’s] safety and wellbeing by immediately leaving to New Zealand on 24 March 2020.  With [the father] having to self-isolate for two weeks when arriving in Queensland, and the number of flights being greatly reduced between states, he would not be able to help us in any immediate nature. I do not have any other support in Queensland that could physically help us.

12. It is not in dispute that the mother’s decision to leave and to travel to New Zealand with the child was made unilaterally by her, without the father’s knowledge or consent. Unsurprisingly, the father is unhappy about the mother’s actions. He filed a Response to an Application in a Case in which he seeks a Recovery Order returning her to Western Australia and again for the proceedings to be transferred to the Family Court of Western Australia. I do not understand the father to be seeking an Order that the child live with him. He does seek an Order that provides for the mother to bring the child to Australia for one week each month to spend time with the father and his family, if she is permitted to retain her in New Zealand. Relevantly, the paternal grandfather and the paternal aunt also live at F Town. Presumably, the father seeks to exercise that time, if that is what is ordered, there, as he has been up until the mother and child left the country in March.

13. In the Orders proposed by the mother at the hearing, she seeks that the child spend time with the father in New Zealand for up to eight hours per day for up to seven days in every six week period. She does not propose bringing the child to Australia to spend time with him.

14. The ICL submitted to the Court that the proper Orders to make are Orders that require the mother to return with the child to the B Region and to remain with her there until the trial.

The Mother’s Case

1. In her first affidavit in support of the Application in a Case, the mother advanced a number of evidential bases as to why she should be permitted to take the child with her to New Zealand to live whilst awaiting trial. She said that her family, her sister and her family all live in the same town, her hometown of G Town, where she proposed to live with the child. She proposed that she could get more work with the two companies she was already working for remotely in Australia and that she could rely on the assistance of her mother to provide additional child care for the child whilst she worked. She said she has a large network of friends there with children her child’s age.

2. She said this is in contrast to the B Region where she has no family or support. She said that her financial situation in Australia is strained. She and her daughter live in a single room bedsit and she receives Family Tax Benefit A and B of $344 per fortnight, as well as the income from her remote engineering consultancy work. She said that as a New Zealander in Australia, her status does not permit her to receive the single parent pension, but that she is entitled to a Special Benefit of $250 per week, reducing dollar for dollar for every dollar of income she earns, as well as a loss of Family Tax Benefit. The mother put her case on the basis of an expectation of a downturn in her work and, therefore, her income and her relatively poor financial circumstances, asserting she would be financially better off in New Zealand. She said that whilst she used to receive $250 per week in child support from the father that she was no longer receiving that amount which impacted detrimentally on her capacity to financially support their child.

3. The mother then asserted that the Coronavirus related travel restrictions would make it harder for the father to travel to the east coast to spend time with the child and that, therefore, there was no great benefit in her and the child staying in Australia pending the trial. At the end of her affidavit, she said that her financial circumstances make it urgent that a trial is “urgently allocated for this matter if temporary relocation is not available”.

4. The inclusion in her first affidavit of that last paragraph allowed the reader to conclude that the mother was advancing acceptance of the fact that if she was not permitted to take the child to New Zealand on an interim basis that she would not go, but would still like to have the matter listed urgently for final determination. Notwithstanding that, the mother decided to go anyway, without awaiting the Court’s determination.

5. In her second affidavit, the mother sets out that she and the child are now living in her mother’s home and being financially supported by her mother and step-father. She said that her income whilst in Australia had varied month to month but that she was averaging $2,804 AUD per month, plus $344 Family Tax Benefit A and B for a total of approximately $1,746 per fortnight. She said that her family expenses averaged about $1,400 per fortnight. She did not include any amount of child support paid by the father in those calculations, saying that the father had been erratic in his payments of same. He disputed that.

6. The mother was represented at the hearing by experienced family law counsel who advanced all these arguments for the mother as reasons why it was in the child’s best interests to let her stay in New Zealand, whilst asserting that the submissions did not condone the mother’s unilateral decision to return with the child to New Zealand without waiting for and respecting the Court process.

The Father’s Case

1. The father asserted, as he had before Judge Coates, that he, the mother and the child were all resident in Western Australia before the mother’s unilateral move away from there in 2018. He pointed to the fact that he is busy running a business there as also being supportive of his submission that the mother and child should return to live in Western Australia and that the matter should be determined in the Family Court of Western Australia. He asserted that he could find accommodation for them and he asserted that he could begin paying the mother $250 per week again for “child support” for her financial assistance if she and the child returned to Australia. When asked his position with respect to expedition of the trial if the mother is ordered to return the child to Australia on an interim basis, the father asserted that he would need at least six months to prepare for a final trial. I explored the basis for that assertion with him and ultimately was satisfied that his assertion that he could not be ready sooner than that was not able to be sustained.

The ICL’s Case

1. The ICL had done a lot of good work in finding information related to the current Coronavirus pandemic and the responses of Governments in Australia and New Zealand and she put much of that before the Court, essentially in support of her submission that the mother should be ordered to return the child to live in Australia until the trial. The ICL did not oppose expedition of the trial in all the circumstances, if the mother is ordered to return the child to Australia.

My Determination

1. After considering all of the evidence and the submissions before me, and appreciating that the circumstances pertaining to the way in which Governments are responding to the impact of the Coronavirus in our communities is very fluid and changing frequently and almost on a day to day basis at the moment, I am satisfied that the best interests of this child at this particular point in time are for her to be returned to Australia by her mother and for the final hearing of the competing parenting and property adjustment applications to be expedited and listed for a hearing in early July, just eight weeks away from now.

1. The question of her interim residence pending trial was already decided by Judge Coates. That was not appealed by the mother and the mother clearly acknowledged in the evidence contained within her first affidavit filed in late March this year and her Application in a Case that she needed the further sanction of this Court if she was to be able to move the child to live in New Zealand pending trial. She knew that an alternative to not being permitted to move was to seek an expedited hearing if she could obtain one in the circumstances. Yet, despite knowing that, she just decided to go anyway.

2. My orders will have the child returned to Australia to live here until the final hearing is concluded and the dispute between the parents is finally determined. I consider it appropriate for the mother to return the child and for them to live in the B Region in the interim period, as she and the child were doing since the separation from the father and as sanctioned by Judge Coates in late 2018. Of course, if the mother does not want to return to Australia herself to live with the child pending the determination of the matter on a final basis, the child will have to be returned to the father’s care in Western Australia, where she will stay until the final hearing.

3. Upon the child’s return to the B Region, should the mother decide to return to Australia with the child for the interim period, the existing orders of Judge Coates will generally apply as to the child spending time with the father, but I will actually make Orders that increase that time to eight hours per day with the father on the days she spends time with him as that is essentially what the mother says she is now prepared to accommodate by way of the Orders she proposed.

4. I am reasonably satisfied that the rapidly changing travel restrictions and the exceptions seemingly appropriately made for families subject to Family Court orders providing for children to spend time with each parent will facilitate the time the father and the child should spend together between now and the trial. I am also satisfied that in the relatively short interim period, the mother’s finances, though somewhat strained, will suffice to get her through to trial whilst living here in Australia again, if that is what she chooses to do. In addition, the father has said that he will provide the mother with $250 per week instead of the amount that he is providing her with at the moment. That will be of valuable assistance to the mother in supporting their child. I will not order the father to pay that, though he said he would consent to an order to that effect. The particularities of the Family Law Act 1975 (Cth) and the Child Support (Assessment) Act 1989 (Cth) make it a little complex to do that simply by way of ordering the father to pay $250 per week in child support. In these circumstances, I will simply accept the father at his word of committing to pay the extra amount to the mother between now and trial and at trial that commitment, of course, will be reviewed.

5. I will not, just as Judge Coates did not, transfer these proceedings to the Family Court of Western Australia and order the child to be returned there (unless the mother elects to stay in New Zealand). As I am going to expedite the trial and hear it in early July, I would not expect it to get any more expedited treatment in the Family Court of Western Australia. I am satisfied, after discussing with the parties who the witnesses are likely to be, that the interests of justice are served by keeping the matter here in this Court and in my docket now.

6. I will, as I said at the hearing I might do, make trial management directions for the matter to be readied for trial in early July. I am satisfied that there is nothing about the matter that prevents it from being prepared for trial on parenting and property adjustment within that period of time.

7. I make the Orders that are set out at the commencement of these written reasons.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 6 May 2020.

Associate: 

Date:  6 May 2020