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NO PLACE LIKE HOME, COURT FORCES MOTHER TO MOVE BACK TO FATHERS HOME TOWN

KALDAS & KALDAS

FEDERAL CIRCUIT COURT OF AUSTRALIA

[2020] FCCA 1723

 

This case is about a Father who seeks to have his children returned to their former matrimonial home.

FACTS:

The parties separated in May 2020, after Mr. Kaldas (the Father) left the former matrimonial home.  The Father’s solicitors advised Ms. Kaldas (the Mother) that while the final resolution of the matrimonial issues were pending, she was not to relocate or remove assets from the former matrimonial home without first obtaining the Father’s approval.  However, the Mother, with W,X, Y, and Z (the children), moved to Town B and removed substantial chattels and other assets from the former matrimonial home.  The Father, through his solicitors, notified the Mother that “unless she and the children return to the former matrimonial home, together with the chattels and assets removed from the home by 5.00pm Thursday 28 May 2020, the Father will issue proceedings to locate and recover the children and seek injunctions to restrain her from disposing the matrimonial assets.” The Mother, through her solicitors, informed the Father’s solicitors that she fled Town A in circumstances of severe family violence.

The Father filed an urgent Application seeking orders that the parties’ children return to reside in Town A, in the former matrimonial home. The Mother opposed the Application and sought orders that she be permitted to reside with them in Town B/Region C.

ISSUE:

Whether or not the Court should grant the Father’s Application for orders seeking for the children to be returned to Town A.

HELD:

As was stated by Justice Boland in Morgan & Miles[1], in cases involving relocation and in particular where there has been a unilateral relocation, it is highly desirable that absent issues such as abuse or violence and except on cases of emergency, “the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing.”

The Court was satisfied that the Mother’s relocation to Town B with the children was done without the consent of the Father. The evidence was very clear that the Mother was fully aware that the Father did not agree to the relocation, given the solicitors’ email sent to the, which despite this, the Mother moved to Town B on 21 May 2020.  Also, the explanation given for her move by her solicitors on 26 May 2020 was that she was fleeing severe family violence and not that the Father had consented to her and the children’s move to Town B. 

The Mother’s claim that she was the victim of various family violence incidents to which the children were also victims or to which they were exposed, which the Father strongly denied, is a matter that cannot be determined at an urgent interim hearing given the contradictory evidence of the parties. 

Also, it is not possible to determine at an urgent interim hearing whether moving to Town B would be the children’s best interests, which can only be determined at a final hearing where there can be a full investigation of the evidence.  However, the Court was satisfied that the children’s best interests are met at this time by orders that require the Mother to return them to Town A. Even as this is not where the Mother wishes to live, it is the only home the children have known. It will enable them to have the stability of their home, school and community and spend regular and substantial time with their father and paternal grandparents whilst they adjust to their parent’s separation pending a final determination of this matter.  Hence, the Court ordered for the children to live in Town A.

 

“The circumstances of the child at the time of the application or immediately before an unauthorized removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.” [2]

 

 

 

[1] Morgan & Miles [2007] FamCA 1230.

[2] Goode v Goode, [2006] FLC 93-286.

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