HUSBAND SEEKS FOR THE RETURN OF HIS CHILDREN FROM MELBOURNE TO SYDNEY, MOTHER SAYS SHE CAN'T AFFORD TO MOVE BACK TO SYDNEY.
Galardi & Renosa [2020] FCCA 2755 (8 October 2020)
This case involves the applicant-father seeking interim order that the respondent mother return the children to Sydney where there are allegations of family violence made by the mother.
Facts:
This concerns an interim parenting order in respect of two children of the relationship, X, currently aged three years and two months and Y, currently aged one year and two months. The application is bought by Mr Galardi (“the applicant father”), following separating from Ms Renosa (“the respondent mother) (“the parties”) in November 2019 and relocating the respondent mother with the children to Melbourne.
The applicant father seeks the interim order that pending final determination of these proceedings, the respondent mother forthwith return the children to Sydney and not thereafter, remove the children from Sydney without the applicant father’s consent.
The respondent mother alleged that the applicant father assaulted her in the presence of the children, the applicant father was arrested by police for assaulting the respondent mother and an Interim Apprehended Domestic Violence Order was taken out by police.
In terms of the capacity for the respondent mother to return to Sydney, the Court notes the assertion that the respondent mother is living in assisted accommodation, which she is able to afford on her current Centrelink benefits. The applicant father, whilst offering to pay relocation expenses, acknowledges that he is not in a position to support the respondent mother financially, in relation to rental accommodation in Sydney. The applicant father acknowledges that the only real way that the respondent mother could relocate to Sydney, would be for her to be given access to public housing. How this is to occur on a practical basis, has not been put to the Court. Further, the respondent mother asserts that she would be isolated from family and other community supports in Melbourne and that both she and the children are now well settled there.
Issue: Should the children be returned to Sydney?
Law:
- The primary considerations, as to what is in the best interests of the children, are set out in s 60CC(2) of the Act, being the benefit of the children having a meaningful relationship with both of the parents and the need to protect the children from physical or psychological harm from either being subjected to, or exposed to, abuse, neglect or family violence.
- Section 60CC(3) of the Act outlines a number of additional considerations that need to be taken into account in making any parenting order, including in particular, in this case, the practical difficulty and expense of the children spending time with and communicating with a parent
- Section 61DA of the Act provides that when making a parenting order, the Court must apply presumption that it is in the best interests of the children, for the children’s parents to have equal shared parental responsibility.
Analysis:
Interim parenting hearings post particular difficulties, in that no evidence is tested and the Court must rely entirely upon the material contained in any affidavits, together with any additional material that’s been provided by way of tender bundles.
The Court is satisfied that in the circumstances where there are allegations of domestic violence, such that the respondent mother sought to remove herself from Sydney to Melbourne, that it is not in the children’s best interests, particularly given the very tender age, that an order be made for equal time to be shared between the parents. On an interim basis, the Court is satisfied that it is in the children’s best interests for them to remain in Melbourne with the respondent mother and continue to have electronic communication with the applicant father, until such time as travel restrictions are lifted.
The Court does not consider it to be in the current best interests of the children for them to be removed from the current supportive arrangements that are in place in Melbourne and secure accommodation that the respondent mother apparently now resides in, to return to Sydney, when there is no apparent capacity for a guarantee of any accommodation to be available to them.
Conclusion: The children shall remain with their mother.#parenting
