WHITLEY & MOWLE

[2015] FCCA 2326

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITLEY & MOWLE [2015] FCCA 2326

Catchwords:
FAMILY LAW – Family law – unilateral relocation.

Legislation:

Family Law Act 1975

Federal Circuit Court Rules 2001

Morgan v Miles (2007) 38 FamLR 275

Applicant: MS WHITLEY

Respondent: MS MOWLE

File Number: MLC 5363 of 2015

Judgment of: Judge Harland

Hearing date: 25 August 2015

Date of Last Submission: 25 August 2015

Delivered at: Melbourne

Delivered on: 25 August 2015

REPRESENTATION

Counsel for the Applicant: Mr Gardiner

Solicitors for the Applicant: James McDermott Barrister & Solicitor

Counsel for the Respondent: Mr Mallis

Solicitors for the Respondent: Morgan Legal

ORDERS

1. The father return the child [X], born [omitted] 2005 (“the child”) to the mother by delivery to the [omitted] McDonalds by 1.00pm on 28 August 2015.

2. If the father does not comply with order 1 of these orders, a recovery order will be issued.

3. The child is to live with the mother pending further order.

4. The child is to spend time with the father as agreed.

5. The mother is to facilitate telephone contact with the father at least twice per week.

6. Pursuant to section 11F of the Family Law Act 1975 the parties attend a Child Inclusive Conference with a Family Consultant nominated by the Director of Child Dispute Services of this Registry of the Family Court of Australia on 30 September 2015 to discuss the welfare of the child [X] and endeavour to resolve the difference between them. The party with the child attend upon this Registry at 9.00am. The party without the child attend upon this Registry at 10.00am.

7. This matter be adjourned to 8 October 2015 at 9.30am for Interim Hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5363 of 2015

MS WHITLEY

Applicant

And

MS MOWLE

Respondent

REASONS FOR JUDGMENT

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.

1. This is an application by the mother for an order that the child [X], born [omitted] 2005, be returned to Melbourne.  The mother filed her application on 16 June 2015 and due to the state of the lists in this Court, the first return date given to the matter was today.  She acted promptly in the circumstances, bringing the application shortly after the father notified her that he was moving with [X] to take up a position at a ski lodge in the mountains for several months.

2. It is of some significance that the father filed a notice of address for service on 29 June 2015 but has not, effectively, filed his documents.  I understand that his solicitors attempted to file his documents last week, and I have granted leave for those documents to be handed up in Court today. They will also need to be filed in the usual course, but that does not explain the extensive delay in him filing a response, particularly in circumstances where he has made no attempt to facilitate even telephone time between the mother and child. 

3. I note that the Federal Circuit Court Rules 2001 (Cth) provide that a response must be filed within 14 days of service of an application. That seems to be a rule that is honoured in breach rather than in compliance and is not unique to Melbourne but certainly seems very common. The Rules further provide that parties are not to rely on documents filed less than three days prior to an interim hearing; another rule that is honoured in the breach, rather than compliance.

4. It speaks volumes, in my view, about the father’s attitude towards this matter, because in his response, all he proposes is that the mother spend supervised time with [X] after a section 11F report has been conducted. He also proposes that the mother, at her own expense, purchase a mobile phone, and then some telephone contact would happen. He says in his material that he could not facilitate telephone contact because of an intervention order in place. That, in my view, is not an excuse because, on his own evidence, he has a partner, and he could have arranged for the partner to make [X] available on the phone.

5. I think what the real issue is, from his own words – and I think this is significant in the text exchanges that are annexed to the mother’s affidavit – is the father’s real attitude about his role and the mother’s role in [X]’s life respectively.  He very much has an attitude that whatever he decides to do with [X] should be what happens.  He very much has involved [X] in the dispute in a way that shows either a real lack of insight or lack of concern for [X]’s emotional wellbeing. He tells the mother that [X] wants to go and will be devastated if her mother tries to stop her. What child at the age of 10 is not going to want to live in a ski lodge in the mountains? She is getting skiing lessons. She is going to a small mountain school. It is difficult to imagine a child who would not want to have that sort of experience.

6. What is inappropriate is that it is clear that the father has worded [X] up about this before approaching the mother about it to really try and make it a lay‑down misère.  What is the mother supposed to do?  It seems, at first, that she is saying, “Look, okay,” and, of course, she is in a difficult position, because if she says no, then she is the one who is the bad parent who is stopping her daughter from having this wonderful experience.

7. It is also clear that the father is placing [X] in a somewhat adult role by saying:

   Look, she doesn’t understand why you’re not taking her opinion and respecting her decision.  [X] is old enough to be recognised by the Courts to be able to make her own choice.

8. That is not so.  [X] is 10.  It is important that her parents and the Court – this is mandated under the Act, listen to her and take account of her views, but that is not the deciding factor, and, in fact, for any child – but for a child of 10, that child is on the cusp of things.  That child is not a teenager yet.  She is still fairly young.  That child does not really understand the consequences - that it means that she is not going to be spending any time with her mother, and it is also a burden for her. 

9. The father may see it as giving her responsibility. It is really abdicating his own responsibility as a parent, because this is a discussion that should have happened between the parents long before [X] had any idea that this was an option.  Perhaps if that had happened, and perhaps if there had been some proposal that would deal with how the mother would maintain contact with [X], she may well have gone along with the proposal because it is a fairly short‑term arrangement. However, that ignores the history that the mother talks about even prior to that, because it seems, on her case – and certainly there are factual issues in dispute between these parties that I cannot determine on an interim basis, but, on her case, she says that the father made it difficult for her to spend time with [X] for some months prior to that.  That could be seen as a way of really making it easier to make a move away.  The father, of course, has a different version of events.

10. It is also of some interest that the father tells the mother that [X] would be devastated if the mother stops her from going and that “if you want to fight, bring it on”. If that is the case, where is he? He is not in Court today. He has left his counsel in a somewhat invidious position of not being able to get instructions, although he was put on notice that the matter was in Court today and he needed to be available. It strikes me that the father is arrogant and dismissive in his material. He says he cannot possibly leave the mountain. He says that it is a 24‑7 job that he is doing. He also, somewhat audaciously, asks the Court to delay having any section 11F report until the end of September because he has got his job on the mountain and he is getting married. Where is the priority for this father about the relationship that [X] should have with her mother?

11. The other concern that I have about the documents that he has filed late is that he raises allegations about the mother which, presumably, he would say, justifies there being only supervised time after a section 11F report, but the kinds of issues that he raises as a concern do not justify such a drastic action. He is talking about what food she is fed. He is talking about blaming the mother for the child having a urinary tract infection. That seems to me a bit of a long bow to draw as, unfortunately, many females get urinary tract infections caused by all sorts of things, but it says something about his attitude that it must be the mother’s fault and he quotes [X]’s blaming the mother.

12. There does not seem to be any suggestion or even concept that maybe he should be discouraging [X] from thinking that if, indeed, that is the case, because one of the real responsibilities that parents have as part of their responsibilities of parenthood is to positively encourage the relationship between the other parent and that child. Because one thing that parents who are separated seem to forget is that the child that they dearly love was created by two people and that means that child has characteristics of both those people.  If one parent is so disparaging of the other and sees that other parent as having no important role, as a child gets older and into teenage years particularly, they start to question, “Does that mean that there’s part of me that dad doesn’t love or mum doesn’t love?  There’s part of me that mum or dad doesn’t like?”  And what does that say to a child?

13. I have no confidence that the father appreciates the gravity of this situation and the emotional harm that he has likely inflicted on his daughter by involving her in this conflict in this way, by cutting her off from her mother, regardless of – even if there are some issues in that relationship – that is a matter of contest, but even if there are, many relationships are not always easy, but that does not mean that that relationship should simply be cut off or diminished, and there certainly seems to be a case that the mother has been involved with this child previously.  There is a dispute about how involved, but there is nothing on the material that screams out to me that this is a matter where, all of a sudden, the mother should be having no time at all, and the fact that there has not even been any telephone contact and there is simply a dismissive line, “Well, the mother, at her expense, can buy a mobile phone, and then I will be happy for that contact to happen.” 

14. If he was genuine about that, he would have made sure that there was some telephone contact happening, but, in fact, it seems to me, the impression that I have and, it comes from his own words – is that he would much rather have the mother disappear, because then he can get on with his new wife and move – first it is to the mountains.  He then says in his material then it is going to be to a country town.  There is no suggestion, really, about how this relationship is going to be maintained between the mother and the child.  It seems more that the impression is that it is a bit of an inconvenience and that he sees it as being up to [X].

15. How easy would it be for [X] to say to her dad, “Gee I miss mum.  I would like to talk to mum.  You know, I haven’t seen her.  I would like to tell her about the skiing I’m doing, how good I am at it”?  How easy is it for [X] to say that to dad, knowing what dad’s attitude is towards her mother?  And they are the kinds of things, I suspect, that he has not put any thought into. 

16. As I said during the course of submissions, I think the mother is in a somewhat invidious position because it is likely that [X] is going to harbour some resentment for her not being in the mountain locale, and she is aware of that, but it is also a situation where another month is just a month too long for there to be this gap because there has already been a gap of a few months, and that, I think, is of concern.

17. The mother seeks to have [X] live with her.  It certainly seems to me on the material thus far that unless I make an order for [X] to return to Melbourne, she will not be spending any time with the mother, and that if she remains in her father’s care, that relationship is probably still not going to be facilitated.  I cannot say that there are the same concerns in the reverse. 

18. I think the father’s attitude is further shown in the text exchanges between the parents where he talks about him not going to deny the mother seeing [X] before they leave, but that if [X] does not want to speak or spend time with mum, then her wishes should be respected and, again, that is an example of almost parentifying this child.  It is also of some concern that [X] is not really in a position where she could freely say to dad, you know, “Hey, I would like to talk to my mum”, and maybe, “I would like to talk to my grandmother”, who has also been, on the mother’s case, and it seems the father agrees, a significant figure involved in this. 

19. The father was well-aware when he made the decision to leave at short notice to the mother that the mother was objecting.  That is clear in the material.  Somewhat interestingly, the father seeks an order for equal shared parental responsibility.  An order for equal shared parental responsibility means that the parents actually have to consult with each other about issues that affect the child in major, long-term issues and include not moving away to such a distance that makes it more difficult for a child to spend time with their parent. 

20. I am going to give the father the opportunity to bring [X] back to Melbourne. The father has in his power the ability to make this easier for [X] or harder for [X], because it is all going to depend on what he says to her and how he explains this situation to her.  No order I can make can make him take responsibility and address these issues in a child-focused manner, but it would certainly be in [X]’s best interests if he did so.

21. This is a case that is clearly in the category of unilateral relocation cases and the principles as set out by Boland J in Morgan v Miles (2007) 38 FamLR 275, and particularly paragraph 55 of that judgment, apply. There are both the individual interests in this case, but also broader interest in the Court only allowing a unilateral relocation to stand in exceptional cases, and this is not an exceptional case.

22. The danger of allowing unilateral relocations to stand is that it would send a message to parents and other parents to do the same thing and to, in effect, be able to unilaterally relocate without the Court being in a position to properly consider all of the issues that go to a relocation case.  Whether or not this becomes a relocation case on a final hearing basis remains to be seen. 

23. The father seems to make some sort of suggestion that that is a proposal, but, quite properly, the kinds of issues that arise in cases like that need to be tested.  There needs to be expert evidence before the Court and the opportunity to test that evidence.  That cannot happen in an interim hearing in a duty list such as this and that is the very reason for those principles, as I have referred to as set out by Boland J.

24. And one of the concerns that often raises in those kinds of cases, and I have the concerns in this case, is the attitude of the parent who takes that action as to how they really see the importance or, I think in the father’s view, the lack of importance of the relationship that the child has with their other parent.  That relationship does not have to be perfect, but a child only has one mother and one father and it is very important that unless there is a risk of abuse or violent or issues of unacceptable risk of family violence or abuse, the Act makes it very clear, and it is just really a matter of common sense in a child’s best interest, that that child is entitled to a meaningful relationship with both parents. That is the child’s entitlement.  It is not about the parents’ rights, it is about the child and what that means to a child.  And there is certainly nothing in the evidence of this case that suggests that that should not be the primary consideration. 

25. I have not specified what time the father is to spend with [X] at the moment, because I do not know if he is going to return to Melbourne or not.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date: 27 August 2015