Court Orders 11 yr old & 14 yr old back to Darwin to live with Father after Mother’s Relocation to Queensland.
Mother staying where she relocated as has a job.
Mother alleges Drug Use and Family Violence against Father.
Family Report Ordered.
Interim Decision & Order only.
NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.
Colley & Fallon  FCCA 1293 (24 February 2017)
Last Updated: 29 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
COLLEY & FALLON
FAMILY LAW – Parenting – unilateral relocation to (omitted) by the mother – children to return and reside with father in Darwin.
Morgan & Miles (2007) FLC 93343
DNC 48 of 2017
24 February 2017
Date of Last Submission:
24 February 2017
24 February 2017
Counsel for the Applicant:
Counsel for the Respondent:
Mr Gunasekera appearing via telephone
(1) That the children X born (omitted) 2002 and Y born (omitted) 2005 live with the father.
(2) That the father is not to consume marijuana or any other illicit substance while the children are in his care.
(3) Pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship X born (omitted) 2002 and Y born (omitted) 2005 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 30 June 2017.
(4) The family report to deal with the following matters:
- (a) any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
- (b) the matters set out in
- of the
- ; and
- (c) any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
(5) The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.
(6) The parties are to telephone the Case Coordinator Children Dispute Services on (omitted) fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.
(7) Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
(8) Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:
- (a) a Children’s Court;
- (b) a child protection authority;
- (c) a State or Territory legal aid authority; and
- (d) a convener of any legal dispute resolution conference.
- At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.
- Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
- In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 6 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.
(9) Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
(10) Upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).
(11) In the event any party in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served on or before 1 June 2017 as follows:
- (a) setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and
- (b) annexing such material as is considered relevant,
- (c) with the affidavit to be paginated, indexed and exhibits tagged.
(12) That the matter is adjourned to 8 August 2017 at 11.00am for further directions.
FEDERAL CIRCUIT COURT
DNC 48 of 2017
REASONS FOR JUDGMENT
- These reasons for judgement 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.
- This is a parenting matter concerning two children, X and Y, who are 14 and 11 years old respectively. The parties separated in about mid 2015. It is clear that the mother had a desire to relocate from Darwin to (omitted) probably from around about that time. She has deposed in her affidavit that she raised that issue with the father from around about that time. Her affidavit says, without giving any specifics of dates or a conversation that the father agreed to her relocating, by implication with the children, on the basis that she did not ask him to pay child support. The context of that would appear to be that at that time the mother was residing in the former matrimonial home with the children and the father was paying half or more of the mortgage in circumstances where that was a de-facto support.
- In any event, the father says that he did not agree. I cannot make any particular finding about what was said in that conversation. In a way it does not matter, because it is clear, I think, from the succeeding course of events that other matters overtook any arrangements or discussions that the parties may have had up until that point. In mid 2016 the mother obtained quotes for removal to (omitted). Around about the same time she got legal advice she says in her affidavit. It is clear from her affidavit, in my view, that she knew that something more was required. She says that she consulted a lawyer at the Legal Aid Commission to arrange mediation between her and the father. It is clear from that paragraph that there was in fact some continuing dispute. The affidavit of the wife does not suggest that the question of relocation was settled but there were other matters that remained in dispute. The affidavit is in fact silent on that point. The only reasonable inference from that paragraph is that the nub of the matter between these parties, that is, the mother’s relocation, remained in dispute.
- She went as far as to make an application for legal aid. Her application for legal aid, as far as I can see from the date, was made in September 2016. The mother says that she spoke to the father again around about this time and he said that he would “investigate” and it should be left with him. She said that she started pestering him about getting consent orders and he kept delaying it. I infer from that that she had been advised that if she was to relocate there ought to be consent orders obtained permitting her to do that. That was the point of the whole process she was talking about. It seems very unlikely that she consulted a lawyer and was not told that a relocation without agreement would run the risk of a court order for the return of her or the children or both. Still her affidavit is rather silent about that issue and is intended, I think, to create the impression that the father was just non co-operative and in some sense he should be blamed for not having obtained the consent orders permitting her to go to Queensland. That appears to be what’s being suggested.
- Whether or not that is reasonable in the circumstances I do not know. The fact is I am satisfied that the mother was aware that some formal type of agreement was necessary before she relocated. And it is clear she at no stage had that formal agreement. She nevertheless booked one-way tickets and made arrangements to depart. On 7 December the father sent an email making it clear that he did not agree with her proposed relocation. And so from at least that time she knew in unequivocal terms that there was no agreement. The planned relocation was on 23 December. She says that after moving to Queensland or after arriving in Queensland, as I understand it, on 23 December she received a telephone call from Relationships Australia, who had wanted to make an appointment for her to attend mediation. Apparently a misdirected letter was provided to her dated 7 December requesting mediation. So it is clear from that that there had been steps taken, I infer, by the father to set up a course of mediation over this time. I think it’s likely that the mother was aware of that, though I cannot make any definite finding about that as this is an interim hearing.
- It appears to me that the likely situation at the time of the mother’s relocation on 23 December was that she was aware that a unilateral relocation may create difficulties. She was aware that some sort of formal agreement was required, ideally consent orders. That was the point of her application for legal aid. I think it’s also likely that she was aware that mediation had been arranged by the father or steps taken by the father to arrange mediation. Notwithstanding, she relocated on 23 December to (omitted) with the two girls. In my view, though I do not make any positive finding and I cannot given it is an interim hearing, it appears to me that there are strong indications that this was a unilateral relocation.
- The mother affirmed an affidavit on 20 February 2017 in response to the father’s affidavit where he said that the children had been spending equal time with him. She says:Mr Colley spending time with the children was very sporadic. It was not 50-50 at all. The children would stay with me during the week, and he would have them on the weekend, usually only for a day.
- I made an order for a child inclusive family conference at an earlier date and the family consultant in (omitted) interviewed the mother and the father as well by telephone, I assume, but I am not sure about that, and in addition the two girls. What X, the eldest child, who is almost 15 years old, told the family consultant that the time she was spending, and I infer this applies to her younger sister as well, with the father was week-about. In other words, equal time. When I pressed the mother’s counsel about this issue and I asked him to obtain instructions from his client, he eventually obtained instructions from the mother that an equal-time arrangement had been in place from about six months after separation. So that would suggest that an equal-time arrangement was in place with these children from the beginning or early in 2016. In my view, that information is completely inconsistent with what was deposed in the mother’s affidavit. I think the likely arrangement was that for about a year or so prior to her departure these children were spending equal time with each parent.
- The family consultant’s report in relation to both children seems to indicate that they both have a good relationship with both parents. There seems to be some indication that the older child might lean towards the father somewhat, but as is always the case in these cases, nothing is entirely straightforward, and there are also indications that the older child in particular is concerned about her mother’s emotional state. It’s possibly in that context that X expressed a wish to remain in (omitted) and not return to Darwin. I do not know. I cannot really work through that until I have something more detailed such as a family report. But I am satisfied that there was nothing disclosed in what the children told the family consultant that would indicate the children were at any risk in returning to Darwin.
- Some particular matters were dealt with. Family violence. It appears that X had witnessed some pushing and shoving between the parents at one point but no indication of the allegations of savage family violence made by the mother. The mother also makes allegations about the father’s marijuana use and said that he is not a fit person to be looking after these children because of his marijuana use. I might just say that is inconsistent with the arrangement she entered into with the father over the previous 12 months for equal time. It also seems to be inconsistent with being married to him for 17 years and having two children as she said that his marijuana use was heavy throughout the relationship. She also says in her affidavit that when the father smoked marijuana he removed himself from the house and smoked in the back shed. That seems to be also consistent with the father’s admission that he is a marijuana-smoker and continues to use marijuana. I think that some injunctive orders are likely to be sufficient to deal with that issue.
- The counsel for the mother, as I say, made allegations about family violence. I am not satisfied that that is a reason not to return the children. I do not consider there is any indication that they are presently at risk in returning to Darwin and their father’s care. Similarly I do not consider that the father’s marijuana-smoking, subject to some orders I will make in a moment, is likely to be a particular risk to the children. The authorities make it reasonably clear that – and I refer in particular to Morgan & Miles (2007) FLC 93343, a case relied on by Mr Barry, counsel for the father, at paragraph 88 in particular, where it says 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 types of cases in which the child’s present stability may be extremely relevant on an interim basis.
- The children have lived here, as far as I can see, all of their lives. When I say “here” I mean in Darwin and have been going to local schools. The mother’s unilateral relocation has upset that stability. The children are presently living in (omitted) and, I presume, going to local schools. They are living, according to the mother, in a single room in the mother’s sister’s home. That is all three of them. She has not found housing since 23 December and apparently has not taken steps to find housing. She is employed, I understand, and is a (occupation omitted).
- In all of the circumstances I am satisfied that the important questions relating to the residence of the children should not be determined de facto in an interim hearing but require more careful consideration. I am satisfied that in the circumstances the best interests of the children are met by maintaining what is stability, even though the mother’s unilateral relocation has resulted in the injection of a great deal of unnecessary instability into the children’s lives. I do not propose to make an order that the mother return. She has a job, and I am satisfied that it would be extremely disruptive to her to order her to return. So I propose to make an order that the children reside with the father until further order.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Young
Date: 15 June 2017
NOTE: This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties. Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case. A breach of the section is a criminal offence. The section also sets out certain limited defences to criminal liability. An example is where the Court has expressly authorised the publication.
A printable version can be accessed from Austlii without pictures or advertisements here, which should be used if you wish to provide the case to the Court in your matter.