Tomlinson and Conlan

[2019] FamCA 492

FAMILY COURT OF AUSTRALIA

TOMLINSON & CONLAN [2019] FamCA 492

FAMILY LAW – CHILDREN – With whom a child lives – Change of residence.

Family Law Act 1975 (Cth)

Rice v Asplund (1979) FLC 90-725

APPLICANT: Ms Tomlinson

RESPONDENT: Mr Conlan

INDEPENDENT CHILDREN’S LAWYER: Ms Thomas

FILE NUMBER: AYC 59 of 2013

DATE DELIVERED: 7 June 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 7 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Davis

SOLICITOR FOR THE APPLICANT: Robinson McGuinness

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, NSW

Orders

1. Orders 3-16 of the orders made by Thornton J on 31 October 2017 are suspended.

2. Orders 1-9 of the orders made by Gill J on 27 February 2019 are discharged.

3. X shall live with her Father.

4. The Father is at liberty to enrol X at G Town School.

5. X shall spend time with her Mother:

   (a)During school term time, each second weekend from after school Friday until 5pm Sunday; and

   (b)For the second half of each school holiday period commencing at 12pm on the mid Saturday and ending at 12pm on the last Saturday of the holiday period.

6. For the purposes of Order 3, in the current term the alternate weekend shall commence this afternoon.

7. For the purposes of Order 3, in school terms other than the present school term the alternate weekend shall commence on the second weekend of each term.

8. The parties are at liberty to vary these arrangements in writing.

9. Until further order each party, Ms Tomlinson, born …1970, and Mr Conlan, born …1970, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the child X, born …2010, from the Commonwealth of Australia for a period of two years.

10. AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period or until the Court orders its removal.

11. The matter is otherwise transferred to the Registrar’s list pending further interim application or pending the parties seeking to have the matter relisted before me for further directions.

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 Tomlinson & Conlan 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 CANBERRA

FILE NUMBER: AYC 59 of 2013

Ms Tomlinson

Applicant

And

Mr Conlan

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This matter concerns competing Interim Applications about the child of the parties’ relationship, X.  Those applications occur in the shadow of final orders that were made by Justice Thornton in October 2017, orders about international travel and schooling made by Justice Cronin in November 2018, and orders made by me compelling X's return to D Town in February 2019, and also in the shadow of the Mother’s Application now to relocate to the United Kingdom (the UK) with X.

2. I am faced with competing applications, firstly involving international travel proposed by the Mother to occur to the UK this coming school holidays and also a question about whether there should be a change in who X lives with as was provided for in my orders of February 2019 in the event that the Mother not return to D Town.

3. The recent context of this matter is set out in my previous judgment of February 2019.  Central to that determination was that the Mother, who is X's primary carer, had changed X's living arrangements.  She changed school.  She then removed X to be home schooled.  She was alleged to have made a threat to relocate to the UK and then she unilaterally moved to the Australian Capital Territory (the ACT) and changed school without permission from the Father. 

4. Orders were then made which required X's return to the D Town area, and if the Mother did not also return for X to then live with the Father.  X has returned to D Town, returned to a new school in D Town (which is her third in D Town).  However, a serious question has emerged as to whether the Mother has in fact returned to live in the D Town area or whether she is in reality commuting from the ACT into temporary accommodation. 

5. Whether or not this is the case a serious question, and perhaps a more important question also arises as to whether X's current living arrangements provide sufficient stability for her.  These questions have ramifications for the Father's application that X now lives with him.  They also have ramifications for the proposed trip to the UK. 

6. If the Mother has been non-compliant in returning to D Town in the context of the previous non-compliance and unilateral relocation to the ACT then, despite the travel being to the UK, which is a Hague Convention country, and despite the Mother's offer of a $10,000 bond, there would be little confidence that there would be a return to Australia absent Hague Convention action and the attendant disruption that that would cause X.

7. What then leads to the D Town arrangements being in question at all? On 21 February this year I made orders for X's return to D Town to live by 3 March 2019.  I made orders that if the Mother not return to live in D Town by 10 March 2019 then X would live with her Father.

8. In the three and a half months since I made those orders no arrangement better than an on and off stay in temporary accommodation has been made by the Mother for X.  In the three months since the Mother was due to relocate to D Town X has stayed in temporary accommodation while in D Town save as for when she spends five nights per fortnight with her Father.  The temporary accommodation, theoretically, has been X's primary home while with the Mother.

9. From there X has been attending at the school that the Mother chose for her, save as for when she has attended at the school from her Father's care. 

10. In that time the Mother, who had rented a home in Canberra, made no steps to relinquish that home.  Although the six month lease expires in the next two weeks, no evidence of a proposal or arrangements to quit that property or for a move of items to D Town has been given.  During that time since the making of the orders the Mother has retained work in Canberra.  The Mother gave no evidence at all that she has attempted to find work in D Town. 

11. The Mother has not secured rental accommodation in D Town and has presented ambiguous evidence of her attempts to do so.  I am unable to determine the level of her efforts to do so.  When directed to the question of the bona fides of her efforts the Mother provided a copy of an application for a rental property wherein she had offered to pay four weeks in advance.  The date of that application was two days ago, being the day that the Mother was last in Court.  The Mother also provided documents as to efforts to obtain rental properties, but these too had a level of ambiguity about them. 

12. The non-securing of the property by the Mother is not in the context of a lack of funds.  At the end of March 2019 the Mother received approximately $50,000 into her bank account, apparently by way of support from her family. 

13. These are interim proceedings.  There is evidence suggestive, or a lack of evidence which is suggestive, of an unwillingness or inability of the Mother to provide adequate living arrangements for X and employment for herself.  There is evidence that could support the notion that the Mother has made significant efforts to obtain accommodation but as I have noted above this is ambiguous and it occurs in the context of a failure to secure accommodation despite the resources that the Mother obviously had available to her. 

14. The extent of the Mother's efforts remains unclear in these interim proceedings, but it is clear that she has made no effort to obtain employment in the D Town region. 

15. It is also clear that what has currently been secured for X's living arrangements in the temporary accommodation is not redolent of a position of stability for X.  It is particularly so in the absence of any description by the Mother of the facilities that the accommodation affords. 

16. For these reasons, in the light of the Mother's previously expressed ambivalence about returning to D Town at the previous hearing, that the D Town arrangements are in issue in the current proceedings. 

17. While the Father was also critical that the accommodation records and school attendance records painted a picture of X being withheld from school to be in Canberra, that is not a conclusion that I can draw at this point.  Counsel for the Mother pointed to factors which lead to a reasonable query as to the reliability of the accommodation records that were produced on subpoena.  The Mother has also given adequate explanation for the bulk of the non-attendances of X at school, including documentary evidence that her initial non-attendances were part of a transition process agreed to by the school.

18. Under all of these circumstances and in the light of the previous judgment that I gave in this matter, what should be the conclusion?  Counsel for the Mother mounted a strong case to say that while the arrangements for X are less than ideal, they are adequate to a sufficient degree that the changes proposed by the Father, being a change in primary carer, a change in home and a change in school would be an unjustified disruption of X. 

19. Counsel also pointed to Justice Thornton's findings that a change in carer was not justified, at least at the time of that trial, unless there was interference with the Father's relationship. 

20. The Independent Children’s Lawyer (the ICL) took a somewhat different view.  The ICL pointed to the anxiety in X which was identified at the hearing before Justice Thornton and also to the Mother’s previous undermining of X's relationship with her Father.  The ICL pointed also to the chaotic arrangements for X with the Mother that were identified in my previous judgment.  The ICL then emphasised X's current circumstances which she said that, together with the other matters, were demonstrative of the Mother's inability to prioritise X's needs over her own. 

21. In the context of this being only an interim hearing I acknowledge that that is a possible finding from the matters which have been raised, but it is premature to make a finding that the Mother does have such an inability as conclusive as to an aspect of her parenting capacity.  However, I do accept the overall thrust of the ICL’s submissions.  The chaos and instability previously identified are now added to by the current and ongoing circumstances faced by X.  The stability that I identified in the previous judgment as of sufficient importance so as to justify a change in residence to achieve it is still in an undermined state while X remains in the hands of her Mother. 

22. The current circumstances are consistent with one of two propositions.  Either the Mother cannot, or the Mother will not, provide stability for X.  There is only limited reason to expect improvement.  As noted previously the Mother has made no steps to secure employment in D Town.  Despite the resources available to her she has not secured accommodation.  There is ambiguity regarding the attempts she has made to obtain accommodation and also ambiguity as to her position in respect of the retention of her ACT property and work.  I note that in the previous judgment I identified the appropriate legal approach to be taken in such matters.

23. There is a need to regulate X's position, pending a final hearing, in the context of a lack of firm findings but with reasonably settled evidence of inadequate arrangements as to X's stability and her living arrangements and ambiguity about whether the Mother can or will end this, and the context in the last judgment that this issue of stability was a critical issue for X. 

24. Against those considerations as identified by counsel for the Mother, the changes proposed by the Father would cause a change in X's home, a change in her primary carer and her change in her school.  These are significant changes to X and in a sense they also undermine X's stability.  However, there is a context of those changes, being that X is familiar with each of those matters.  She knows the school.  She knows the home.  She has a good relationship with her Father.  It is preferable in terms of the provision of emotional care for X that these changes be wrought rather than the current situation continue. 

25. As to the appropriate orders to be made I will not disturb Justice Thornton's order as to equally shared parental responsibility.  I will suspend a number of Justice Thornton's orders and I will discharge the bulk of the interim orders made on 27 February.  The orders will provide for X to live with her Father and to spend regular time with her Mother in the context of lack of certainty as to where the Mother will live. 

26. Before making those orders it is important to identify that the Mother sought orders to permit international travel to the UK, which as I have noted is a Hague Convention country. 

27. However, the Mother's unilateral relocation to Canberra, the Mother’s at best marginal compliance with my orders, the Mother's expressed desire to relocate and the fact that now X will be living with the Father rather than the Mother mean that there is too great a risk of withholding X in the UK.  While the Hague Convention should ensure X's return that is at the risk of the need to invoke the mechanisms contained within the Hague Convention which would provide too great a risk of disruption to X.  That travel will not be permitted.

28. I have made orders that govern X’s time with the Mother.  When I previously made orders in February I gave the Mother liberty, in the event that X was not living with her, to file an application supported by appropriate affidavit material to set out what those arrangements would be.  That is not material that I had before me today. 

29. I put in place some holding orders about how the regular arrangements should work.  The matter has been transferred to the Registrar’s list.  The Mother is certainly at liberty to make an application to vary those arrangements.  That will not involve a Rice v Asplund[1] issue on the interim proceedings. 

    [1] (1979) FLC 90-725

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 7 June 2019.

Associate: 

Date:  25 June 2019