Thompson and Chase
[2010] FMCAfam 962
•22 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THOMPSON & CHASE | [2010] FMCAfam 962 |
| FAMILY LAW – Parenting – unilateral relocation – best interests of young child – relocation in breach of recently entered consent orders. |
| Family Law Act 1975, s.60CA |
| Goode v Goode (2007) 36 Fam LR 422 Keach & Keach (2007) FLC ¶93-353 Morgan v Miles (2008) 38 Fam LR 275 |
| Applicant: | MR THOMPSON |
| Respondent: | MS CHASE |
| File Number: | CAC 1929 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 22nd June 2010 |
| Date of Last Submission: | 22nd June 2010 |
| Delivered at: | Canberra |
| Delivered on: | 22nd June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Haughton |
| Solicitors for the Applicant: | Elrington Boardman Allport Canberra |
| Solicitor-Advocate for the Respondent: | Mr A Bak |
| Solicitors for the Respondent: | Farrar Gesini & Dunn (Canberra) as agent for JNT Legal, Engadine, NSW |
ORDERS
The maternal Grandmother be joined as a party to the proceedings.
Within 21 days the Mother and the child, [X], return to reside within a 50km radius of [H] (a town south of Sydney), NSW.
The child live with the Mother.
The Father spend supervised time with the child [X] each Saturday from 9.30am to 11.30am.
Changeovers occur at the Goulburn McDonalds.
The Father’s time with the child be supervised by a supervisor arranged by the Father, that person to be a responsible adult other than the Mother.
Pursuant to s. 62G of the Family Law Act 1975 the parties together with the child [X] born in 2006, attend a family conference with a Family Consultant of the Federal Magistrates Court and Family Court of Australia to endeavour to resolve the issues in this case. This will involve the parties together with the children attending the Federal Magistrates Court at Canberra on a date to be advised to the parties. This conference will be reportable and if the matter does not resolve the Family Consultant is requested to prepare a short- form family conference report.
The matter be adjourned to 23 August 2010 at 10.30am.
The parties have liberty to relist on 14 days notice.
The Mother advise the Father of her address in [T] (a town in north-eastern New South Wales) to enable the Father to send the child a birthday present.
Upon returning to [H], the Mother advise the Court of her residential address.
IT IS NOTED that publication of this judgment under the pseudonym Thompson & Chase is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1929 of 2009
| MR THOMPSON |
Applicant
And
| MS CHASE |
Respondent
REASONS FOR JUDGMENT
A. Introduction and background
On 22nd June 2010 I made orders, among others, requiring the Respondent Mother, Ms Chase, to return to an area within 50 kilometres of her former residence with her daughter, [X].
On 4th May 2010, this Court made parenting orders by consent. Summarily stated, those orders provided that (a) a report be prepared by a Regulation 7 consultant, (b) the Applicant, Mr Thompson, undergo a paternity test,[1] (c) each of the parties undertake certain drug tests, and most relevantly for current purposes, (d) “… the Mother not relocate the residence of the child without re-listing the matter for determination by the Court.” The order not to relocate with the Court’s imprimatur is Order 5 of the Consent Orders of 4th May. For ease of reference, a copy of those orders is annexure A to these reasons [omitted]. What follows are the reasons for the orders made on 22nd June.
[1] I understand that this test has occurred but, according to Ms Haughton, Counsel for Mr Thompson, the relevant laboratory has refused to provide the test results to Mr Thompson, although Ms Chase’s solicitors appear to have a copy of them. Those results will be provided to Mr Thompson shortly. Transcript (22nd June 2010) p.14.
There was, in fact, a conference with a Court family consultant scheduled for 8th June. That did not occur. Ms Chase forwarded a medical certificate, dated 8th June 2010, from a doctor at a medical practice at [T] South, which confirmed that she was receiving [unspecified] medical treatment and would be “unfit to continue her usual occupation” between 8th and 9th June. That medical certificate became Exhibit B at the interim hearing.
Pursuant to previous orders made on 16th December 2009, the Applicant, Mr Thompson, was to spend, and (as I understand it) had been spending, time with [X] (who was born in 2006, and therefore is aged 4) for two (2) hours each fortnight supervised by Mr Thompson's Mother.
In his affidavit, filed on 3rd June 2010, Mr Thompson deposed to travelling with his “elderly parents” from [B] (a town south-west of Sydney) to Wollongong to spend this time with [X], because the Respondent, Ms Chase (he says) would not meet him halfway. Standard electronic searches confirm that the approximate distance between these locations is just under 300 kilometres, and the average trip (one way) would take approximately three (3) hours.
Mr Thompson’s 3rd June affidavit was in support of an Application in a Case, filed on that same date, in which he sought a significant change in the orders. Among other things, he sought a change of residence order so that [X] lived with him and spend supervised time with her Mother. That Application was predicated upon a number of matters, which included a contention that Mr Thompson was not now spending any time with [X].
In all, six (6) affidavits were filed in support of the change of residence application. Those affidavits contain some genuinely troubling matters, including an occasion said to have been witnessed by Mr H (affidavit filed on 19th May, par.6) where the Mother, Ms Chase, was seen sitting in her car with [X], parked outside Mr Thompson’s residence, with a gun pointed at herself (Ms Chase) and (par.7) “… the child crying uncontrollably.”
Mrs Thompson, the Applicant’s Mother, deposed also to seeing Ms Chase with “a gun barrel pointed under her jaw.” Mrs Thompson’s affidavit was filed on 19th May 2010) (see pars.2-5).
The affidavit material also suggested – particularly the affidavit of Ms W (filed 19th May 2010) – that [X] had, in large measure, been living with her maternal Grandmother rather than Ms Chase.
The matter first came before me in the Duty List on 21st June. It was adjourned for an urgent hearing the following day. In the course of submissions, it was noted that Ms Chase and her Mother were present in Court during the Duty List, although they were not present for the interim hearing the following day.[2] Indeed, Mr Bak confirmed that the maternal Grandmother was present in Court the previous day.[3] In this respect, at least, it may be said that the Grandmother is apprised of the proceedings – whether as a party or not.
[2] Transcript (22nd June 2010) p.3.
[3] Transcript (22nd June 2010) pp.11-12.
Also at the outset of submissions, Counsel for Mr Thompson confirmed that she had just been advised by Mr Bak, the solicitor who appeared as agent for Ms Chase’s solicitors, that indeed Ms Chase and her Mother had relocated to an area known as “[O].” [O] is just north of the better known township of Brunswick Heads. [O] is more than 1100 kilometres from [B], Mr Thompson’s place of residence.
B. Issue(s) for resolution and submissions
In the light of confirmation that, contrary to the Consent Orders of 4th May, Ms Chase has unilaterally relocated to [O] with [X], the most immediate matter to determine is what orders should now be made. Ms Chase’s actions have clearly made it extremely difficult for Mr Thompson to spend any, or any regular, time with [X].
In addition to the issue of the unilateral relocation, Counsel for Mr Thompson also raised questions about Ms Chase giving false evidence in previous affidavit material.[4] This was essentially on the basis of her earlier affidavit material attesting to her living in one locality with [X], while police records that were tendered (and which became Exhibit A) suggest that Ms Chase was at least spending significant periods of time in suburban Sydney, and not in the area(s) to which she had previously deposed.
[4] See Transcript (22nd June 2010) p.6.
However, given all the constraints that usually attend interim hearings,[5] in my view, the focus should be on the unilateral relocation. Other issues, such as the allegation of false evidence, the Mother’s work as a prostitute at a local brothel, and allegations of her use of crystal methamphetamines, can and must only be dealt with when the Court, and the parties, have a more fulsome opportunity to deal with such matters.
[5] Cf. the comments of the Full Court in Goode v Goode (2007) 36 Fam LR 422 at p.445 [82 (d)].
Mr Bak submitted that the reason for the unilateral relocation and the failure to abide by the May orders to seek Court sanction for such a move was “pinned on funding.”[6] By this I understood him to say that his principal’s client simply did not have funding to bring an application to relocate. He expanded on this submission to state clearly that Ms Chase was in “a financially desolate position.” Part of the reason for this, he submitted, was because Mr Thompson paid no child support.[7] Her parlous financial position, he said, made her completely reliant upon her parents – hence her sudden, unilateral relocation.
[6] (Transcript (22nd June 2010) p.8).
[7] Transcript (22nd June 2010) p.9.
In the course of submissions by, and general discussion with, Mr Bak, I put to him, as something of a variation or possible alternative, that the maternal Grandmother be joined as a party and, if that occurred, and in the light of Ms Chase’s state of penury and dependence on her parents, both Ms Chase and her Mother could be required to return to the general area from whence Ms Chase had relocated. Such a course would enable, in due course, appropriate procedures and inquiry to be undertaken to determine whether [X] should move, with her Mother, to [O]. Mr Bak confirmed that, if that was the alternative to an order that [X] live with Mr Thompson, then he would prefer that course.[8]
[8] Transcript (22nd June 2010) p.12. I did not, and do not, take Mr Bak’s response as any formal admission against Ms Chase.
The discussion to which I have just referred followed my reference to Mr Bak to Boland J’s seminal judgment in Morgan v Miles, where her Honour was sitting as the Full Court.[9]
[9] (2008) 38 Fam LR 275. Her Honour was exercising the jurisdiction, sitting as a single judge, pursuant to s.94AAA(3) of the Family law Act (“the Act”). For the reference to Morgan v Miles being raised in the course of the hearing, see Transcript (22nd June 2010) pp.8-9.
Mr Bak submitted that the facts of this case could, or should, be distinguished from the facts and circumstances that gave rise to the principles Boland J articulated in Morgan v Miles. The distinguishing features of the current proceedings, he submitted, were essentially (a) the financial destitution of his client and its consequences to which I have already referred, and (b) a number of instances, by both parties, of failing to comply with previous orders, including the paternity testing of Mr Thompson.
C. Legal principle
The discussion by Boland J in Morgan v Miles is, in my view, determinative of what course the Court should take in relation to the current Application.
The fundamental difficulty in this case is the simple fact that Ms Chase has unilaterally relocated in what appears to have been rather secretive circumstances, and has apprised Mr Thompson of nothing.
I do not read Boland J’s judgment and clear exposition of principle, such as at [74], as containing too many exceptions to “the careful exercise of a structured discretion to determine the appropriate order to be made....” Although her Honour referred, at [91], to “economically impoverished families,” apart from Mr Bak’s submissions, there is very little evidence from which the Court may even infer (safely or otherwise) either Ms Chase’s penurious circumstances, or any other reason that might fit what Boland J referred to, also at [91], as “determinative criteria” of the unilateral relocation. The Court is simply in no position either to grant or to deny its imprimatur to Ms Chase and her actions.
It is of some significance, however, that Ms Chase and her Mother were able to be in Court one day but not the next. Mr Bak was able to inform the Court only that the relocation had been ‘recent.’[10]
[10] Transcript (22nd June 2010) p.8.
Ms Chase’s sudden move and at such a vast distance from Mr Thompson, in circumstances where, on Mr Bak’s admission and Ms Haughton’s clear recollection, both Ms Chase and her Mother were present in Court the day prior to the interim hearing, may suggest that financial circumstances are not quite as dire as is currently suggested. That said, neither the Court nor Mr Thompson knows anything of her financial circumstances, other than what Mr Bak submitted from the Bar Table.
It is as well to recall in more detail Boland J’s statements of principle in Morgan v Miles, which begin at [72] of her Honour’s judgment. It is sufficient for current purposes to note her Honour’s remarks from [73], thus:
[73] It is also undisputed that in determining a parenting case where one party wishes to relocate the child’s best interests remain the paramount, but not sole, consideration.
[74] The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
[75] It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significant more difficult for that child to spend time with the “left behind” parent.
[76] If no order for equal shared parent responsibility has been made and s 61C governs the situation, the parties can exercise parental responsibility either jointly or severally.
[77] The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the “left behind” parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.
[78] Section 60I requires parents, if no exclusionary factors such as abuse, family violence or urgency apply, whether there is an order under s 61C, or s 61B is operative, to make a genuine effort to resolve the dispute with a family dispute resolution practitioner.
[79] In considering whether the child should live with the parent who proposes to relocate a court:
Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
· Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
· Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
· If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
· In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
· When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
· Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
· that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
· that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
· that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
· the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
· Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
[80] It follows from my exposition of the legislation, that earlier core principles:
· that the child’s best interests remain the paramount but not sole consideration;
· that a parent wishing to move does not need to demonstrate “compelling” reasons;
· that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
· the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
[81] What the legislation now requires is:
· consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
· if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
What is the effect of the legislation in dealing with an interim application?
[82] It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.
[83] I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.
[84] The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.
[85] In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph. Whilst lengthy, it aids understanding to set out the relevant passages from Goode:
[71] The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.
[72] In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
[73] That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).
[86] I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s65DAA (with reference to s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.
[87] As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
[88] It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.
Among many salient aspects of her Honour’s judgment that I have set out, on the bare facts of this case – and I emphasise “bare” – I underline Boland J’s comments, where her Honour clearly stated the need for “the careful exercise of a structured discretion” ([74]), the importance of deciding cases such as these at “a final hearing” ([84]), and that it is “highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing” ([88]).
It is indisputable that the Court has an appallingly low level of evidence and information before it at the present time. There is such a deficiency of information – and even more so than usual – that it would be even more fraught than it commonly is in interim matters to embark upon the prescribed “legislative pathway.”[11] The Court simply is in no position even to begin the so-called usual process of determination of what orders are in [X]’s “best interests” in the current circumstances.[12]
[11] See the Full Court’s discussion in Goode v Goode (2007) 36 Fam LR 422 at p.445 [81] – [82], and Keach & Keach (2007) FLC ¶93-353 at [25] ff.
[12] Cf. s.60CA of the Act.
As already indicated, the only certainties thus far established are: (a) Consent Orders were entered into by the parties as recently as 4th May 2010; (b) Order 5 of those Orders proscribed the Mother relocating without first seeking the sanction of the Court; (c) contrary to those orders, Ms Chase has unilaterally, and recently, relocated to [O]; (d) Ms Chase and her Mother attended the Court during the Duty List on 21st June, but did not attend the Court for the hearing of the application the following day; and (e) Mr Thompson has not spent time with [X] now for some time because of Ms Chase’s relocation.
In such circumstances, and in the light of the clear authority of Boland J in Morgan v Miles, orders need to be made (a) requiring Ms Chase to return to the general vicinity from which she moved, but to do so within a reasonable period of time;[13] (b) for the maternal Grandmother to be joined as a party to the proceedings;[14] (c) [X] to remain living with her Mother; (d) Mr Thompson to continue to spend supervised time with [X], the supervisor to be arranged by Mr Thompson; (e) changeovers to be at McDonalds at Goulburn; (f) the parties are to attend a family conference (the date and time of which is to be arranged); (g) upon her return to the general area from which she relocated, Ms Chase is to notify the Court of her address.
[13] See the discussion with Ms Haughton and Mr Bak regarding the particulars of this order at Transcript (22nd June 2010) pp.12-19.
[14] Ibid.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 22 June 2010
Annexure A [omitted]
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