Interim Order Allowing Mother’s Relocation with Baby & Toddler

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1 yr old & 4 yr old relocated from New South Wales to Queensland with the Mother.

Father’s first 3 months time supervised at Harmony House.  

Mother allowed to stay where she relocated in Queensland. 

There was an issue of whether the Father had consented to the move and some evidence he had, by having moved there himself for a period of time to study.

There was extended family living in Queensland and the Children were well settled there by the time the Father brought his application.

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.  

Healey & Osbourne [2017] FCCA 1277 (29 June 2017)

Last Updated: 20 July 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEALEY & OSBOURNE
Catchwords:
FAMILY LAW – Parenting – interim hearing – two children aged 4 and 1 – relocation of mother and children to Queensland – whether there was consent to the relocation – spend time with father – best interests of the children.
Legislation:
Cases cited:
MRR v GR [2010] HCA 4
Goode & Goode[2006] FamCA 1346
Marvel & Marvel (No.2)[2010] FamCAFC 101
McCall v Clarke [2009] FamCAFC 92
Oswald & Karrington[2016] FamCAFC 152
Sampson & Hartnett (No.10)[2007] FamCA 1365
Applicant:
MR HEALEY
Respondent:
MS OSBOURNE
File Number:
NCC 258 of 2017
Judgment of:
Judge Middleton
Hearing date:
2 June 2017
Date of Last Submission:
2 June 2017
Delivered at:
Newcastle
Delivered on:
29 June 2017

REPRESENTATION

Counsel for the Applicant:
N/A
Solicitors for the Applicant:
Byrnes Lawyers
Counsel for the Respondent:
Mr Graham
Solicitors for the Respondent:
Tony Cox Lawyers

 

ORDERS

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(1) That the proceedings be transferred to the Federal Circuit Court of Australia at Brisbane on 3 October 2017 at 9.30am for directions before Judge Coates;
(2) That the children, X born (omitted) 2013 and Y born (omitted) 2016 (“the children”) live with the mother;
(3) That the parents have equal shared parental responsibility for the children;
(4) That the mother and the children be permitted to continue to reside on the (omitted) Queensland;
(5) That the children spend time with the father as agreed and failing agreement no less than:

(a) For 3 months from the commencement of the first time the children spend with their father following these orders as follows:

      • (i) For such time as is available at Harmony House on the (omitted) and for a minimum of 2 hours once each month;
      • (ii) Such time to be supervised by Harmony House;

(b) At the expiration of 3 months and provided the children have spent time with their father on each occasion pursuant to these orders, once each month from 9.00am Saturday until 1.00pm Saturday for a period of 3 months;

(c) Thereafter and provided the children have spent time with the father in accordance with these orders, once each month from 9.00am Saturday until 5.00pm Saturday and continuing until further order.

(6) That both the mother and the father contact Harmony House within 48 hours of receipt of these orders for the purposes of engaging in an intake session with Harmony House.
(7) Both parents are to comply with all reasonable directions of the Harmony House coordinator.
(8) Both parents are to contact Relationships Australia within 48 hours of receipt of these orders for the purpose of engaging in and completing a parenting after separation program.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 258 of 2017

MR HEALEY

Applicant

And

MS OSBOURNE

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This is a parenting application involving two children, X born (omitted) 2013, almost 4 and Y born (omitted) 2016 some 15 months old.
  2. The parties began a relationship in 2006, married on (omitted) 2012 and separated on 13 December 2015. Y was born after separation.
  3. The father commenced proceedings on 16 December 2016 and the mother filed a response on 3 March 2017.

Orders sought

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  1. The father seeks the following orders:
    1. the mother and father have equal shared parental responsibility for the children, X born (omitted) 2013 and Y born (omitted) 2016;
    2. the children shall live with the mother;
    3. the children shall spend time with the father as agreed between the parties but failing agreement as follows;
      1. for a period of 6 months following the making of these orders from 4.00pm Friday to 9.00am Monday each alternate weekends commencing the first Friday following the making of these orders;
      2. from the end of the period referred to in order 3.1 above and for a period of 12 months from 4.00pm Friday to 4.00pm Monday in one week and from 4.00pm Wednesday to 9.00am Friday on the other week on a rotating fortnightly basis;
      3. from the end of the period referred to in order 3.2 above for one week out of every 2 weeks on a rotating fortnightly cycle;
    4. the father shall have reasonable telephone contact with the children (having regard to their ages) with the father to telephone the mother to initiate such contact and the mother to arrange for the children to speak to the father on such occasions;
    5. the mother be restrained from relocating the children from the (omitted) area without the prior written consent of the father.
  2. The respondent mother seeks the following orders:
    1. That the initiating application filed on 16 December 2016 be transferred to the Federal Circuit Court of Australia Brisbane;
    2. That the children, X born (omitted) 2013 and Y born (omitted) 2016 (hereinafter called the children) live with the mother;
    3. That the mother have the sole parental responsibility for the children;
    4. That the mother and the children be permitted to continue to reside on the (omitted), Queensland;
    5. That the children spend time with the father as agreed or as the Court directs.

The Evidence

  1. The father relies upon the following:
    1. His initiating application filed 16 December 2016;
    2. His affidavit filed 16 December 2016; and
    1. His notice of risk of 16 December 2016.
  2. The mother relies upon the following:
    1. Her response filed 3 March 2017;
    2. Her affidavit filed 3 March 2017; and
    1. Her notice of risk filed 3 March 2017.

The Law

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  1. Guided by the objects and principles contained within section 60B of the Family Law Act 1975 (Cth), I must make orders that are in the best interests of these children.
  2. I must regard the best interests of the children as my paramount concern (section 60CA) and consider the matters set out in section 60CC (2) and (3).
  3. I am asked to make an order in relation to parental responsibility. Section 61DA(3) relevantly provides:

“when the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.”

  1. In the event that I make an order for equal shared parental responsibility, then the provisions of section 65DA A apply.
  2. Those provisions are expressed in imperative terms. In MRR v GR[1](2010) HCA 4 the High Court said:

it obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par(b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order…..A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind…. If such a finding cannot be made, sub – ss (2)(a) and (b) required that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as sub – s(1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

  1. In Good & Good[2] the Full Court set out the manner in which a court might consider an interim hearing. I will adopt that approach.
  2. I have already identified the competing proposals of the parties.
  3. The main issue in dispute is whether the mother relocated to Queensland in approximately June 2016, and with the consent of the father or whether she relocated to Queensland at some time after October 2016 and without the consent of the father.
  4. It is an agreed fact that the mother currently resides on the (omitted) in Queensland. It is furthermore agreed that the father relocated to the (omitted) in Queensland in February of 2016 and resided there until October 2016.
  5. The parties agree that the father spent time with the children in both Queensland and New South Wales in 2016. The parties further agree that the father last saw the children on 13 July 2016.
  6. It is agreed that the mother’s parents now reside on the (omitted), having sold their property in (omitted) in approximately October 2016 and that the mother has a sibling residing in the Brisbane area who is also contemplating moving to the (omitted).
  7. As I said the main area of dispute is in relation to whether the mother moved to Queensland in June 2016 or at some time after October 2016.
  8. I of course have to deal with the factual matrix as it is before me. It is a fact that the mother has been residing in Queensland for either approximately 12 months or approximately 7 months.
  9. In Marvel & Marvel[3] the Full Court said:

as has frequently been emphasised interim parenting proceedings and orders made as a consequence are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to the child is adopted.”

Assessment of the Evidence 

Section 60CC(2)(a)

  1. The mother says that the father showed very little interest in his daughter X due to the fact that he was rarely at home. The mother says that she became aware that the father was being unfaithful to her when she was 7 months pregnant with Y and that she terminated the relationship as a result.
  2. The father says he is concerned that the mother does not want him to have a relationship with either of the children due to his actions, and that he very much wants to be involved in both of the children’s day-to-day lives.
  3. As to meaningful relationship the full Court in McCall & Clarke[4] at paragraph 119 said:

“we conclude that the preferred interpretation of benefit to a child of a meaningful relationship in section 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant.”

  1. On any view of the evidence the fact is that the father has had virtually no relationship with Y and his relationship with X has been significantly strained due to the distance between he and the child post separation.
  2. The father himself created some distance by moving to the (omitted) in February 2016, shortly after separation.
  3. The mother has added to that distance by remaining relocated in Queensland.
  4. I must further assess and weigh the evidence and determine how, if it is in these children’s best interests, or as can be framed to ensure the children have a meaningful relationship with both parents.

Section 60CC(2)(b)

  1. The mother says that the father was abusive and controlling towards the end of the relationship. The mother gives evidence that the father tried to film her using a spy camera in the family home.
  2. The mother sought an apprehended violence order. The apprehended violence order was dismissed in circumstances where the applicant’s solicitor objected to the evidence contained within the application, those objections are upheld and as a result the prosecution had no evidence to offer.
  3. The father raises the concern that the mother is attempting to remove him from the children’s life and that, by inference, as a consequence the children will suffer psychological harm.
  4. I am not satisfied on the evidence that either parent poses a risk to these children

Section 60CC(30(a)

  1. The children are too young to express a view.

Section 60CC(3)(b)

  1. The children have lived with their mother all of their lives. The children live in close proximity to maternal grandparents and a maternal aunt.
  2. Based upon the evidence that is currently before me, I am satisfied that the children would have a strong and secure attached relationship with their mother and a strengthening relationship with other maternal family members in Queensland.
  3. As I previously said, the father has been estranged through both his own actions and the actions of the mother from having a relationship with the children.
  4. At the current time and based upon the evidence, I am satisfied that the father would have a relationship with X that is both familiar and potentially strong and that he has no real relationship with Y.

Section 60CC(3)(c)

  1. The father through his own actions failed to take the opportunity to spend time with his children and to communicate with his children post separation.
  2. The father says he moved to the (omitted) to study (course omitted) and thereafter notes that he requested on many occasions to spend time with his children.
  3. However the nature of his evidence suggests that somehow the mother is to blame for him not spending time with the children in circumstances where the mother remained living in (omitted) throughout 2016. That simply cannot be so.
  4. I am satisfied that the father through his own actions failed to spend time with the children and to communicate with the children.
  5. The mother may have been reluctant but in circumstances where the father moved away it was incumbent upon him to do all that he could to ensure that he travelled to spend time to see the children.
  6. I am satisfied that the mother has continued to take every opportunity to make decisions regarding the children and to spend time and communicate with the children.

Section 60CC(3)(ca)

  1. There is no evidence before me in relation to the payment of child support or the payment of any financial resources for the children.
  2. In those circumstances I can make no determination with regards to the parents fulfilment or otherwise of their obligations to maintain the children.

Section 60CC(3)(d)

  1. It is a fact that these children have been living in Queensland for some considerable time. The mother annexes to her affidavit a text message that she sent to the father in February of 2016.
  2. That text message suggests that both she and the father had agreed that they were both intending to make a fresh start “up in Queensland.”
  3. The fact that the father then moved to Queensland in February 2016 to study (course omitted) supports that assertion.
  4. Indeed on 15 February the father agreed to sign contracts to sell the family home.
  5. The mother in furtherance of that intention then, she says, moved to Queensland in June 2016. Her evidence is that she travelled between Queensland and (omitted) to both visit her parents, and assist them in selling their property so that they could move to the (omitted).
  6. It is her evidence that she moved to the (omitted) and that her parents subsequently moved there.
  7. The father says the mother was still living in (omitted) until October 2016 and his proof for that assertion consists of an address provided on the apprehended violence order application. The address provided was indeed the maternal grandparent’s home address in (omitted).
  8. There are many reasons why a person seeking an apprehended violence order might provide a different address to the one in which she is residing. In those circumstances I am not satisfied that the provision of the maternal grandparents address is proof that the mother was residing in (omitted) in October 2016.
  9. In assessing the evidence at this interim stage, I am satisfied that it is more probable than not that the mother and the children have been living in Queensland since June 2016.
  10. These are interim proceedings. It is clearly the mother’s intention that she reside in Queensland. That will no doubt be her application on a final basis.
  11. If I caused the children to be returned to New South Wales this will cause a disruption to their life. A life that on my findings has been settled for approximately 12 months in Queensland. This has the potential to be disadvantageous to the children.
  12. Of course a move to New South Wales might place them closer to their father. The disadvantage of the move must be weighed against any advantage to be gained in having a meaningful relationship with the father.
  13. It is not the father’s application that the children should reside with him in the (omitted) area. It is his application that the children reside with the mother in the (omitted) area.
  14. I would therefore need to make a coercive order as to where the mother was to live.
  15. In Oswald & Karrington[5] the Full Court said that the court’s power to make a coercive order should be exercised only in rare and extreme circumstances.
  16. The Full Court in Sampson & Hartnett [6] said that there is an imperative for the court to explore and consider alternative to restricting freedom of movement particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary care giver undertaking that role in a place not of that parents choosing.
  17. There is no evidence before me to suggest that the father does not have freedom of movement. That is, the father does not say he cannot afford to travel to Queensland nor does he say that work commitments prevent him from travelling to Queensland.
  18. He will need to establish a relationship with Y and reconnect with X. This will require shorter visits and perhaps more frequent visits however I am not persuaded that based on the evidence currently before me that the father cannot or would not travel to Queensland for the benefit of his children.
  19. Furthermore, I am not persuaded that there are rare or extreme factors that warrant me exercising my discretion to make a coercive order. There has been too much water under the bridge. These children and their mother have resided in Queensland for approximately 12 months.
  20. In those circumstances, weighing the two competing proposals with regards to the disadvantages to the children, I am satisfied that it would be more disadvantageous to remove them from Queensland at this time.

Section 60CC(3)(e)

  1. There will be a practical difficulty and expense involved in the children spending time with their father.
  2. The father provides evidence that he lives with his mother and that the home in which he shares with her is more than suitable to accommodate the needs of both of his young children.
  3. He gives evidence that he is in paid employment and that he does not wish to move to Queensland.
  4. I am satisfied based on that evidence that the father has the means and ability to spend time with his children both in Queensland, where inevitably the time will initially occur and in New South Wales.

Section 60CC(3)(f)

  1. The parties raise concerns each of the other in relation to their capacity to provide for the needs of the children including their emotional needs.
  2. It is the mother’s case that the father puts his own needs first above those of the children.
  3. She supports that contention with the fact that he was disinterested in X for approximately two and a half years prior to separation and notwithstanding that, he was awaiting the birth of a second child, he decided to have an affair and finally he then without notice in real terms, informed the mother that he was relocating to Queensland to study (course omitted).
  4. The mother says all of those things suggests that the father puts his needs above those of the children.
  5. The father says the mother puts her needs above those of the children and cites as evidence of this the fact that she moved to Queensland, he says without his permission, and that she is making it difficult for him to spend time with the children.
  6. Until all of that evidence can be weighed and assessed at final hearing, it is impossible to make any findings of fact on this issue.

Section 60CC(3)(g) and (h)

  1. Nothing turns with regards to these matters in relation to this case.

Section 60CC(3)(i)

  1. Once again the parties make counter allegations against the other in relation to this aspect of their responsibility towards parenthood.
  2. At this time it is impossible to make any findings of fact.
  3. It is perhaps curious that the Father now says that his relationship with the children should come before the mother’s desire to live on the (omitted) in Queensland in circumstances where he left New South Wales to reside in Queensland to study (course omitted).
  4. At the very least, assuming he passed his subjects, he would be residing in Queensland for approximately 3 to 4 years. He now says it is unfair on his relationship to the children that they are in Queensland. It seems a little contradictory in my view.

Section 60CC(3)(j)

  1. The mother asserts there was some family violence at the time of separation. The mother’s application for an apprehended violence order was ultimately dismissed. Whether there was family violence at the time of separation or otherwise is a matter that will require a full assessment of that evidence and a determination at final hearing.

Sections 60CC(3)(m)

  1. The mother submits that the children’s present stability is extremely relevant.
  2. Having regard to the fact that Y has resided in Queensland for most of his life, both children have lived with their mother, and the fact that the maternal grandparents moved to the (omitted) it is likely that these children’s stability has been unaffected by the move to Queensland.
  3. That is, they had a relationship with the maternal grandparents in (omitted) and that relationship has been unaltered, Y has been stable in Queensland more than half his life and X continues to live with her mother.
  4. Furthermore the children have always resided with their mother and she has at no stage left them for long periods of time. That stability remains in Queensland.
  5. The father cannot argue that he has provided a stable relationship for the children in circumstances where he chose to move to Queensland in February 2016. On any view that would have caused instability in his relationship with X at the very least.

Section 61DA(3)

  1. There is nothing contained within the evidence before me that would satisfy me that it would not be appropriate in the circumstances for the presumption in section 61DA(1) to apply .
  2. In those circumstances on an interim basis an order for equal shared parental responsibility will apply.

Section 65 DAA

  1. Due to the findings that I have made, I will not be making a coercive order for the mother to relocate to (omitted) with the children.
  2. It follows that due to the tyranny of distance it would not be in the best interests of these children for them to spend equal time with each of their parents.
  3. It also follows that it would not be reasonably practicable for these children to spend equal time with both parents.
  4. For the same reasons, having regard to section 65DAA (3), it would not be in the children’s best interests for the children to spend substantial and significant time with each parent nor would it be reasonably practicable.
  5. Section 65D provides that I may make such parenting orders as I think proper.
  6. It is important for the development of these children that a relationship continues with their father. For this reason and on an interim basis, I propose making orders for the children to spend time with their father in Queensland. I trust the father will take up the opportunity to spend this time.
  7. For the reasons set out above I am satisfied that is in the best interests of the children to make the following orders.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date: 29 June 2017


[1] MRR v GR [2010] HCA 4
[2] Goode & Goode [2006] FamCA 1346
[3] Marvel & Marvel (No.2) [2010] FamCAFC 101
[4] McCall & Clarke [2009] FamCAFC 92
[5] Oswald & Karrington [2016] FamCAFC 152.
[6] Sampson & Hartnett (no.10) [2007] FamCA 1365.

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.

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