Recovery Order refused & Mum allowed Interim Relocation against Dad’s wishes

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The Father sought a recovery order, that the Mother return the Children to Sydney from Melbourne. 

The three children were aged 3 years, 5 years and 7 years.  At the Interim Hearing the Father offered to vacate the former family home if the Mother returned to live in Sydney so that she could live in it.  The Mother declined this offer saying she wanted to stay in Melbourne.

Both Parents had been born overseas, the Mother saying it was an arranged marriage which had never been happy. They married in 2009 and separated about 31 December 2016 when the Mother relocated to Melbourne with the Children.

The Mother moved to Melbourne as she had an Uncle & his Wife (with whom she lives) and a Cousin living there and able to provide her with support & friendship.  She said she felt isolated and alone in Sydney.  She speaks limited english, is unemployed and receives Centrelink benefits.  She is in a relationship with Mr M and has been for a year.  

The Father works 6 days a week from 6.00am to 2.00pm.  That work schedule restricts his ability to travel to Melbourne to see the Children.

The Mother has been the primary carer of the Children. 

The Court found that if the Mother was to relocate to Sydney her emotional well-being would be adversely affected, in particular having to leave her supports in melbourne and that this would result in the childrens’ meaninglful relationship with the Mother being detrimentally affected. 

The Court also said there was a real risk that the Mother’s parenting capacity could be adversely affected resulting in the well-being of the Children being compromised.  The Court said it gave significant weight to this.  

Various Interim Orders were made including:

  • The Father’s proposed order that the Mother return the Children be dismissed;
  • That Children live with the Mother and spend time with the Father:
  • Both parents are restrained from removing or attempting to remove the Children from Australia.
  • The Children be placed on the Airport Watch List for 2 years. 

Interim decision only.  Matter continues.  





NOTE:  This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  

Massell & Moreno [2017] FCCA 1895 (11 August 2017)

Last Updated: 28 September 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

MASSELL & MORENO

Catchwords:

FAMILY LAW – Parenting – interim hearing – father seeking order that mother return children to Sydney from Melbourne – proposed order not made – best interests of children.

Legislation:

Cases cited:

Goode & Goode [2006] FamCAFC 1346(2006) FLC 93-286

Banks & Banks [2015] FamCAFC 36
Vontek & Vontek [2017] FamCAFC 28
Applicant:
MR MASSELL
Respondent:
MS MORENO
File Number:
PAC 154 of 2017
Judgment of:
Judge Newbrun
Hearing date:
2 June 2017
Date of Last Submission:
11 August 2017
Delivered at:
Parramatta
Delivered on:
11 August 2017

REPRESENTATION

Solicitors for the Applicant:
Rafton Family Lawyers
Solicitors for the Respondent:
Clark Family Lawyers

ORDERS PENDING FURTHER ORDER

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(1) That the proceedings be transferred to the Melbourne Registry of this Court.

(2) That the children X born (omitted) 2010, Y born (omitted) 2012 and Z born (omitted) 2014 (“the children”) live with the mother in Melbourne.

(3) The father’s proposed recovery order that the mother return the children to the Sydney metropolitan area is dismissed.

(4) The children shall spend time with the father and communicate with him in accordance with paragraphs 2, 3 and 4 of exhibit A.

(5) That each of MS MORENO born (omitted) 1988 and MR MASSELL born (omitted) 1979, their servants and/or agents be and is hereby restrained from removing or attempting to remove or causing or permitting the removal of the children X born (omitted) 2010, Y born (omitted) 2012 and Z born (omitted) 2014 and the children are restrained from leaving the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to the preceding Order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the names X, Y and Z on the Watch List for a period of two years from the date of these orders.

(6) That upon expiration of the specified or default period referred to and subject to any order of a court of competent jurisdiction, the Australian Federal Police will remove X, Y and Z from the Watch List noting that if either party seeks that the children X, Y and Z remain on the Watch List for a period beyond the two year period, that party must file and serve an application and an affidavit setting out the evidence to support such application.

(7) That the mother keep the father advised of any serious illness or serious injury suffered by the said children.

(8) That the mother keep the father notified of her current phone number and address at all times and to notify the father within 24 hours of a change of either.

(9) That the father keep the mother notified of his current phone number and address at all times and to notify the mother within 24 hours of a change of either.

(10) That the mother authorise all day care, kindergarten or schools at which the children may attend to:

    (a) Provide the father at the expense of the father, copies of all reports, notices and applications for photographs in relation to the children;<li “=””>(b) Communicate with the father either by telephone, in writing in respect to the children’s progress.

(11) That the parties, their servants or agents are hereby restrained by injunction from:

    (a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence of the children.<li “=””>(b) Discussing these proceedings with or in the presence of the children and from permitting any other person to do so.

(12) That pursuant to section 65DA(2) and (3) and 62B of the Family Law Act 1975, the particulars of the obligations of these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

Notation:

  1. A family report order could be considered to be made by the judicial officer at the next mention of these proceedings in the Melbourne Registry of this court.

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

FEDERAL CIRCUIT COURT 

OF AUSTRALIA 

AT PARRAMATTA

PAC 154 of 2017

MR MASSELL

Applicant

And

MS MORENO

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This was the hearing both of the father’s application for a recovery order (and other ancillary orders) that the mother return the children of the relationship to the Sydney metropolitan area from Melbourne, and the mother’s interim application that children be permitted to live with her in Melbourne.
  2. The children are two sons, X born (omitted) 2010, and Y born (omitted) 2012, and a daughter Z born (omitted) 2014.
  3. The mother relocated the children’s residence to Melbourne from Sydney on about 31 December 2016.

Material relied upon by parties

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  1. The Applicant Father relies on the following documents:
    1. Amended Initiating Application filed 2 March 2017;
    2. Notice of Risk, filed 13 January 2017; and
    1. Affidavit of father filed 2 March 2017.
  2. The Respondent Mother relies on the following documents:
    1. Response filed 26 May 2017;
    2. Affidavit of mother filed 26 May 2017;
    1. Notice of Risk filed 26 May 2017.

Parties’ proposals

  1. The father’s proposals in his Amended Initiating Application filed 2 March 2017 and seek, inter alia, an order that the mother return the children to the Sydney metropolitan area; that the children live thereafter with the mother (in Sydney); that the children spend regular time with the father; and that the parents have equal shared parental responsibility for the children. At the interim hearing the father also proposed that the mother be given vacant possession of the former family home in Sydney.
  2. The fathers alternate proposal, in the event that the court permitted the children to live with the mother in Melbourne, is set out in exhibit A and, inter alia, seeks proposed interim orders that the children spend time with him in Sydney, and otherwise have telephone communication with him at various times.
  3. At the mention of these proceedings on 14 August 2017, the mother’s solicitor made no express submission in opposition to the proposed interim orders in exhibit A relating to the children spending time with the father in Sydney and telephone communication. In this context, the father’s solicitor confirmed to the court that the proposed alternate interim orders in exhibit A contained a proposed order that the father be responsible for paying all costs associated with the children’s travel to and from Sydney.
  4. The mother’s Response seeks interim orders, inter alia, that the children live with the mother; and that the mother be granted leave to reside in Melbourne with the children.

Agreed or undisputed relevant facts (unless stated otherwise)

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  1. The father was born on (omitted) 1979 and is aged 38 years. The mother was born (omitted) 1988 and is aged 28 years.
  2. Both parties were born in (country omitted). The father had arrived in Australia in (omitted) 2005 but he had known of the mother before that time. The parties commenced a relationship in 2009 and were married in that year in (country omitted) (the mother asserts it was an arranged marriage). The father came back to Australia in (omitted) 2009 and applied for the mother to come to Australia. The mother is now a permanent resident. The mother first came to Australia in (omitted) 2009.
  3. The mother has been in a relationship with Mr M for over a year.
  4. The parties separated in about 31 December 2016 when the mother relocated the children’s residence to Melbourne.
  5. The father is presently living in rental accommodation in (omitted) in what was the parties’ family home. It is a four-bedroom home.
  6. The father works full-time as a (occupation omitted) where he has worked for the last 10 years from 6AM to 2PM. During the relationship, the mother was responsible for the children whilst the father was at work. The father cannot cook although he has prepared simple food for the children including their breakfast. It appears the mother in the past has cared for other children at the family home.
  7. When the parties were living together, the child X started school in 2016. The child Y was in childcare two days a week and the child Z had not commenced any type of daycare.
  8. The father has spoken to the children on a few occasions since the mother relocated their residence to Melbourne. The father called the mother’s mobile telephone on each occasion. X and Y are very quiet on the telephone and do not speak much. The child Z is still too young to speak to the father over the telephone. Prior to the filing of the father’s Affidavit, he travelled to Melbourne and met the two children briefly; the father has travelled to Melbourne to see the children at least a couple of times since the mother relocated the children’s residence there.

Relevant legal principles

  1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FamCAFC 1346(2006) FLC 93-286.
  2. In Marvel v Marvel [2010] FamCAFC 101(2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:
    [120] 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 a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

 

[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

[123] Later, at [100] their Honours amplified their comments and said:

The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

  1. Of this, the Full Court in Eaby said at 80,332:
    “As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.”
  2. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks v Banks(2015) FamCAFC 36, especially at paragraph 46 to 52.
  3. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
  4. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
  5. Section 60CC of the Act provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
  6. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. 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: section 61DA (3).
  7. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
  8. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
  9. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the court may make such orders in the discretion of the court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA60CC65D.
  10. As to relevant legal principle relating to recovery applications, the court refers to s67U of the Act providing that, “In proceedings for a recovery order, the court may, subject to section 67U, make such recovery order as it thinks proper”, and section 67V of the Act, providing that, “In deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” The court also refers to relevant legal principle, in relation to relocation applications, set out in the recent decision of the Full Court of the Family Court of Australia in Vontek & Vontek [2017] FamCAFC 28.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) – the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration.

  1. The children have a meaningful relationship with each parent and would benefit from a continuance of those relationships.
  2. The mother has been and remains the children’s primary carer. The father when not working in employment, asserts that he made a substantial contribution to the care of the children which is disputed by the mother.
  3. The Court appreciates that the ability of the father to spend regular time with the children will be significantly compromised should the mother remain living with the children in Melbourne. He states that he works six days most weeks and has very little time to visit the children interstate. He gives no evidence relating to his financial circumstances. Since the mother’s relocation with the children to Melbourne at the end of December 2016, the father appears to have travelled to Melbourne on at least a couple of occasions to see the children.
  4. At this interim stage, should the children continue to live with the mother in Melbourne, and spend time and communicate with the father in accordance with his proposed alternative Minute of Order in exhibit A, (whilst appreciating that telephone conversations to date between the children with the father are fairly limited, or in relation to the youngest child, do not occur), there is a real prospect that the children’s meaningful relationship with the father can be maintained.
  5. Should the mother and children relocate to Sydney, as a consequence of any interim court order, there is a significant risk that the mother’s emotional well-being will be adversely affected, in particular having to leave her supports in Melbourne, resulting in the children’s meaningful relationship with the mother in particular (and quite possibly the father as well) being detrimentally affected. In this context, there is a real risk that the mother’s parenting capacity of the children could be adversely affected resulting in the children’s well-being being compromised.
  6. The court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

  1. The mother alleges that the father was physically violent towards her, but particularly on one occasion in early 2010 when the father allegedly threw a chair at her. The mother states she was very fearful for her safety at this time.
  2. The father makes certain allegations against the mother in relation to the mother allegedly proposing to leave the children in the care of a third person while she either works or studies in Melbourne. These allegations are disputed by the mother.
  3. The Court refers to its discussion below in relation to the father’s allegations of the mother’s historical neglect of the children.
  4. At this interim stage, on the evidence presently before the Court, the Court is not satisfied that there presently exists an unacceptable risk of harm to the children in remaining in the mother’s primary care in Melbourne. Nor is the Court satisfied at this interim stage, that there is a need to protect the children from the risk of abuse, neglect or family violence whilst remaining in the mother’s primary care in Melbourne.

Section 60CC(3) – Additional Considerations

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

  1. The court refers to its discussion above under the meaningful relationship primary consideration.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

  1. The father asserts that when he was not working in employment, he would make a significant contribution to the care of the children which is disputed by the mother.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

  1. The father appears to have been the breadwinner during the relationship. The parties are in dispute as to whether the father has offered to give the mother financial assistance since she left the family home at the end of December 2016.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

  1. The Court refers to its discussion above under the meaningful relationship primary consideration.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

  1. See the discussion above under the meaningful relationship primary consideration, and also below under the s60CC(3)(m) additional consideration.

(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

  1. The parties are in dispute as to the father’s allegations of the mother’s historical inability to properly care for the children. Not without relevance is the father’s preparedness historically to leave the children in the mother’s primary care despite his concerns.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

  1. The parents hail from (country omitted).

3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

  1. Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

  1. The parties are in dispute in relation to how the other parent discharged their parental responsibilities to the children during the relationship.

(j) Any family violence involving the child or a member of the child’s family.

  1. The court refers to its discussion above under the need to protect primary consideration, and below under additional consideration 3(m).

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

  1. Not applicable.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

  1. These are interim proceedings.

m) Any other fact or circumstance that the court thinks is relevant.

  1. The mother asserts that unfortunately the parties have never had a good relationship. She asserts that the parties’ marriage was an arranged marriage. She asserts that she has never really fallen in love with the father. She states that this was due to the nature of their relationship and the time they initially had away from each other, and was exacerbated when the mother moved to Australia due to the change of cultural attitudes.
  2. The mother speaks limited English. She alleges that as a result she was reliant on the father, which compromised her independence and ability to integrate. She alleges that the father was also very financially controlling; she alleges that he controlled what funds were available to the mother.
  3. The mother alleges that her relationship with the father was based on the father being domineering towards her, which in many respects is the cultural norm in (country omitted). The mother alleges that given that she had no family support such behaviour caused her great distress. She alleges that on one occasion the father evicted her from the home because of a disagreement. She alleges she had nowhere to go, so she had to stay with the eldest child in a park.
  4. The mother alleges that due to the lack of family support and the continued breakdown of the party’s relationship, she relocated the children’s residence to Melbourne on 31 December 2016 to be close to family she has there who are able to provide the mother with support and friendship. She states that her family in Melbourne include her uncle and his wife and a cousin, who all assist her and help support her. The mother asserts that she has no family or support in Sydney and she feels isolated and alone.
  5. The mother is currently living in Melbourne with her uncle and his wife. She states that the accommodation is suitable for the needs of the children. The mother is in a relationship with Mr M. She is unemployed and in receipt of Centrelink benefits. The children live with her. The mother asserts she is happy living in Melbourne.
  6. The child X attends (omitted) primary school in grade 1. The mother asserts he is achieving all milestones for a child of his age. The child Y attends kindergarten and is also achieving milestones for a child of his age, according to the mother. The child Z is too young to attend kindergarten yet but is happy and developing according to her age, according to the mother.
  7. The mother has been living with the children in Melbourne now for over 7 months. The two eldest children are attending school there. Should the Court order the mother to relocate the children’s residence back to Sydney, and following a final hearing of the proceedings the Court orders that the mother be permitted to relocate the children’s residence to Melbourne, there is a real risk that the disruption to the children’s lives may result in adverse emotional disturbance to them.
  8. The father alleges that the mother is proposing to leave the children in the care of a third person in Melbourne, while she goes to work or to study there, and he is concerned accordingly, which is disputed by the mother.
  9. The father alleges that in early January 2017 the mother asked a (nationality omitted) woman from the (nationality omitted) community in Melbourne to help her find another house in Melbourne because the house she was then living in was not safe for the children; the father asserts that this woman gave him this information. The father alleges that he called the police immediately who told him that they would perform a welfare check and call him back once that had been done. The father states that he has still not received a call-back from them. There is no evidence before the Court in relation to any welfare check in relation to the children and the mother.
  10. The father makes certain allegations against the mother of her inability to properly care for the children alone, which the mother disputes. For example, the father alleges the mother would sleep in without caring for the children; the mother would not put the children to bed at a proper hour; one of the children had run away from the mother while shopping; the eldest child had in July 2015 broken his teeth when he had had an accident; the eldest child was missing school (four days in one month); a younger child was arriving late for day care; the children would wear dirty clothes with rips in them; leaving children in nappies too long; and the two eldest children have issues with their speech development which the mother would not attend to properly (the mother asserts that the children speak well).
  11. The father alleges that because he works six days most weeks he has very little time to visit the children interstate. He asserts that if the mother was not able to travel back to live in Sydney, then he would be prepared to give up his work so as to care for the children full-time. In response, the mother asserts that the father does not need to look after the children.
  12. The parties are in dispute as to whether the mother relocated the children’s residence to Melbourne without the father’s consent. The father asserts that he did not agree with the mother taking that course of action.
  13. On balance, the Court is of the view at this interim stage that it will be in the best interests of the children to remain living in the mother’s primary care in Melbourne. The Court refers to its discussion immediately above in relation to the mother’s contentions and circumstances in which she lives with the children in Melbourne; in particular, the Court places significant weight on the mother’s assertions that she has family support in Melbourne, both practical and emotional, that she felt isolated and alone in Sydney having no extended family support in Sydney (noting that the mother does not speak English, and the father was working 6 days per week), she feels happy living in Melbourne, and the children are living with the mother in Melbourne and are attending primary school or else in the mother’s care.
  14. The Court notes that the father at the interim hearing offered to vacate the former matrimonial home in Sydney to allow the mother to live there with the children. At the interim hearing this offer was not accepted by the mother who reiterated her supports in Melbourne.
  15. The father has made certain allegations relating to the mother, including her care of the children, which are disputed by the mother; without proceeding to make findings of fact, the Court observes that the father’s allegations are not independently supported by any objective evidence at this interim stage.
  16. The Court recognises that for practical reasons the father’s ability to spend regular time with the children in Melbourne will be significantly restricted in circumstances where the children remain living with the mother in Melbourne; in this context, the Court refers to its discussion above under the meaningful relationship primary consideration.
  17. It is apparent from the Court’s discussions above in these Reasons that it is of the view that it will not be proper or in the children’s best interests to make a recovery order that the mother return the children to Sydney.

Equal Shared Parental responsibility: section 61DA(1) and (2)

  1. The father seeks a parental responsibility order, being equal shared parental responsibility in relation to major long-term decisions for the children. The mother seeks no parental responsibility order at this interim stage.
  2. There is little evidence before the Court presently as to the party’s ability to effectively communicate and reach agreement on major decisions affecting the children. At this interim stage, the Court does not propose to make any express order for parental responsibility.
  3. At this interim stage, should the children remain residing with mother in Melbourne, an equal time arrangement, or an order for substantial and significant time for the children to spend with the father, would not be practicable and would not be in the best interests of the children.

Summary

  1. Evaluating the above discussed considerations under section 60CC of the Act, the Court is of the view at this interim stage that it will be in the best interests of the children to make the following orders:

 

(1) That the proceedings be transferred to the Melbourne Registry of this Court.

(2) That the children X born (omitted) 2010, Y born (omitted) 2012 and Z born (omitted) 2014 (“the children”) live with the mother in Melbourne.

(3) The father’s proposed recovery order that the mother return the children to the Sydney metropolitan area is dismissed.

(4) The children shall spend time with the father and communicate with him in accordance with paragraphs 2, 3 and 4 of exhibit A.

(5) That each of MS MORENO born (omitted) 1988 and MR MASSELL born (omitted) 1979, their servants and/or agents be and is hereby restrained from removing or attempting to remove or causing or permitting the removal of the children X born (omitted) 2010, Y born (omitted) 2012 and Z born (omitted) 2014 and the children are restrained from leaving the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to the preceding Order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the names X, Y and Z on the Watch List for a period of two years from the date of these orders.

(6) That upon expiration of the specified or default period referred to and subject to any order of a court of competent jurisdiction, the Australian Federal Police will remove X, Y and Z from the Watch List noting that if either party seeks that the children X, Y and Z remain on the Watch List for a period beyond the two year period, that party must file and serve an application and an affidavit setting out the evidence to support such application.

(7) That the mother keep the father advised of any serious illness or serious injury suffered by the said children.

(8) That the mother keep the father notified of her current phone number and address at all times and to notify the father within 24 hours of a change of either.

(9) That the father keep the mother notified of his current phone number and address at all times and to notify the mother within 24 hours of a change of either.

(10) That the mother authorise all day care, kindergarten or schools at which the children may attend to:

(a) Provide the father at the expense of the father, copies of all reports, notices and applications for photographs in relation to the children;

(b) Communicate with the father either by telephone, in writing in respect to the children’s progress.

(11) That the parties, their servants or agents are hereby restrained by injunction from:

(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence of the children.

(b) Discussing these proceedings with or in the presence of the children and from permitting any other person to do so.

(12) That pursuant to section 65DA(2) and (3) and 62B of the Family Law Act 1975, the particulars of the obligations of these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

Notation:

(A) A family report order could be considered to be made by the judicial officer at the next mention of these proceedings in the Melbourne Registry of this court.

I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 11 August 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.

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