Secret Relocation Involved Blatant Cunning and Deceit

The issue of relocation was dealt with by Judge Neville in Nettle & Nada [2013] FCCA 1677 (31 October 2013).

In July 2012 the Respondent Mother and the subject child clandestinely moved / secretly relocated from New South Wales to Hobart, Tasmania, without reference to the Father and the Court. This subterfuge by the Mother was, and has continued to be, facilitated to a significant degree by her parents. The Father and the Court continued to be deceived that she remained living in New South Wales until March 2013. 1

The Court had no evidence regarding, among other things, the fiancé of the Mother and his involvement in the life of the child 2  and the Court learnt about the fiancé of the Mother for the first time in the course of the trial 3

Almost all of the major long-term issues involving the child thus far had been taken solely by the Mother, without reference to the Father (the surname of the child, details on her birth certificate, her attendance at day-care, all relevant health decisions). 4

The experienced Independent Children’s Lawyer proposed that the child remain living with her Mother in Hobart, primarily because the child was [now] well settled there.

The Court Held

• There was very significant deception on the part of the Mother 5
• All of the judicial warnings have been flouted by the Mother in this case.
• The transgressions detailed have, in my view, ultimately compromised the child’s best interests, not least because, over a very considerable period of time, she has been deprived of having the benefit of her Father meaningfully involved in her life, to the maximum extent possible. 6
• As a result of the deception of the Father and the Court by the Mother over a very considerable period of time accordingly there must be genuine concerns regarding the bona fides of the Mother 7
• The ICL recommending that the child live with the mother took little or insufficient account of
• (a) the Mother’s long-time deceit of the Father (and the Court),
• (b) the embryonic state of the Father / daughter relationship, and
• (c) the logistical difficulties that must necessarily attend (and which have attended) the Father’s time with the child having proper regard to the interstate and other necessary travel involved. 8
• The evidence was of the deceptive conduct and plan of the Mother, which she implemented over a significant period of time, to keep the Father and the Court “in the dark” about her unauthorised relocation. 9
• The unauthorised relocation, without notification, by the mother and the on-going deception to the Father and the Court, in large measure, speak for themselves. 10
• There was no discussion by the Mother with the Father about any relocation;
• The Father became the “left behind” parent;
• The Mother moved unilaterally “without notice and without consultation.”
• The mother kept her relocation secret from the Father and the Court for a significant period of time.
• The mother also had ample opportunity as did her lawyers (if they knew, as she insists they did, of her unauthorised relocation) to notify the Father and the Court of the Mother’s change of residence with the child, but did not do so until only a few months before the trial. 11

at paragraph [206]

• If allowed to continue, the lack of bona fides and disregard of the Court’s orders of the Mother would risk setting such a precedent that any parent could surreptitiously relocate and then argue, after a period of time, that the child is so well settled in the new area that they could not and should not be returned.
• Such a precedent, in my view, is unacceptable and cannot be countenanced.
• The conduct of the Mother, over a significant period of time, has been contemptuous of the Father and of the Court.
• The mother has consistently refused to take responsibility for her actions.
• She invariably seeks to deflect blame and responsibility to others.
• Had the Mother followed proper process and either sought the Father’s consent about a move to Hobart, or the approval of the Court in accordance with Boland J’s instruction in Morgan v Miles, there is some likelihood (but not certainty) that she would have been able to relocate.
• It is inconceivable that two sets of lawyers (plus Counsel) did not advise her of this course and possible outcomes if it was not followed.
• As Agatha Christie’s famous sleuth, Hercule Poirot, regularly declared, ‘order and method’ is important to find the right solution.
• So it is in parenting matters, and the unique species of that genus, parenting that involves “relocation.”
• The order and method prescribed by Boland J in Morgan v Miles should have been followed in this case.
• With blatant cunning and deceit it was not.

In Relation To The Fiancé of The Mother, The Court Held

• Where the fiancé of the Mother does not give evidence in support of the Mother, it must be assumed that his evidence would not have relevantly assisted her. 12 13
• A clandestine relocation is information that was / is directly material to matters in issue before the Court and solicitors and counsel acting for that parent who know of it were obliged to disclose it to the Court 14
• The existence of a fiancé of the Mother is something of which the Family Consultant should be apprised 15
• Because of the lack of evidence from the fiancé of the Mother, the Court is in no position to know what likely impact it might have on the child not to spend as regular time with those persons as she currently does as a result of the Mother returning from Hobart. 16

1. paras (2), (16) & (21) 
2. para (20) 
3. para (10) 
4. para (142) 
5. para (17) 
6. para (3) 
7. para (5) 
8. para (21) 
9. para (74) 
10. para (76) 
11. para (178) 
12. See Jones v Dunkel (1959) HCA 8; (1959) 101 CLR 298 
13. para (10) 
14. para (11) 
15. para (108) 
16. para (144)