Abbott and Kingsbury
[2010] FMCAfam 245
•16 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABBOTT & KINGSBURY | [2010] FMCAfam 245 |
| FAMILY LAW – Child aged 5 – final orders made by consent in July of 2009 – orders provided for child to live with mother and spend alternate weekends and school holidays with father – at time of orders father lived in [G] and mother lived in Adelaide – orders made in July consistent with recommendations of family report – family reporter concerned at conflictual nature of parties’ parenting relationship – child observed to have a good relationship with each parent – since December of 2009 mother has moved to [M] – and then to [S] – in these circumstances father over-held child during Christmas contact period – mother obtained ex parte recovery order – father obtained ex parte stay of recovery order – matters to be considered in respect of interim relocation application – whether child should be independently represented – nature of interim hearing – section 60CC factors – presumption of equal shared parental responsibility – best interests. |
| Family Law Act 1975, ss.4, 60CC, 61DA |
| Goode & Goode (2006) FLC 92-286 AMS v AIF (1999) FLC 92-852 C & S [1998] FamCA 66 Morgan & Miles [2007] FamCA 1230 |
| Applicant: | MR ABBOTT |
| Respondent: | MS KINGSBURY |
| File Number: | ADC 3937 of 2008 |
| Judgment of: | Brown FM |
| Hearing dates: | 5 & 10 March 2010 |
| Date of Last Submission: | 10 March 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 16 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Abbott in person |
| Counsel for the Respondent: | Ms Ross |
| Solicitors for the Respondent: | Victoria Legal Aid |
ORDERS
P
ursuant to section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child [X] born [in] 2004 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to
Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
During the period of the adjournment and whilst the mother is considering whether she will live in South Australia and whether that will be in [M] or a location closer to the father’s place of residence in [G] pending the final hearing of the matter the child live with the father in [G].
The mother spend time with the child between 2:00pm on 1 April 2010 until 9:30am on 12 April 2010.
The father deliver the child to the mother at the [M] Post Office (or such other place as agreed between the parties) at the beginning of the period referred to in order 4 hereof and the mother return the child to the father at the Family Court Child Care Centre located on level 2, 3 Angas Street, Adelaide at its conclusion.
The mother have telephone communication with the child each Saturday, Monday and Thursday at 6:00pm Australian central standard time with the mother to make the call to the father’s telephone and he is to ensure the child is available to take the call.
The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the child or from permitting any other person to do so.
The matter is provisionally fixed for final hearing before Federal Magistrate Brown on 5 and 6 August 2010 at 10:00am NOTING 2 days allowed.
Further consideration of this matter is adjourned to 12 April 2010 at 9:30am when it is anticipated the mother will be in a position to advise what her provisional living arrangements will be.
IT IS NOTED that publication of this judgment under the pseudonym Abbott & Kingsbury is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3937 of 2008
| MR ABBOTT |
Applicant
And
| MS KINGSBURY |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Abbott and Ms Kingsbury are the parents of [X] born [in] 2004. The parties lived together from 2003 and separated in mid 2008. Both before and after they separated, their relationship with one another and their care arrangements for [X] have been chaotic.
The current proceedings are concerned with interim arrangements for [X]’s care. There have previously been other highly emotional proceedings about what is best for [X]. These proceedings have included the preparation of a family assessment report.
This report was prepared by Mr McDonagh, a social worker, in July of 2009. He assessed the parties relationship as follows:
“The parents would appear to have had a tumultuous relationship over a number of years. They are unable to agree on many of the details of their joint history. They have made a variety of serious claims and allegations against each other. Both would claim that they are the victim of the other’s abuse and violence. Mr Abbott claims that the mother has had and probably continues to have serious drug and alcohol problems. The mother admits that she used amphetamines and marihuana with the father before and after the birth of [X]. Ms Kingsbury believes that the father continues to abuse drugs and alcohol.
It becomes impossible from a distance to determine the veracity of the parent’s allegations against each other. It is clear that their relationship was at times muddled and chaotic. Both parents would appear to have been at fault, both parents would appear to have been very immature and adolescent in their behaviour. The relationship does not appear to have improved after the birth of [X]. From the descriptions of the relationship that both parents have provided to the court it is surprising that the relationship lasted the time that it did.”[1]
[1] See family assessment report at page 13
As a consequence, Mr McDonagh assessed the parties’ parenting relationship as poor and mistrustful. As such he considered it unsuited to a shared care arrangement. The difficulties outlined by
Mr McDonagh remain. In addition there has been no comprehensive fact finding exercise undertaken in respect of the parties’ mutual and serious criticisms of one another.
So far as [X] himself was concerned, Mr McDonagh said as follows:
“[X] presents as well cared for. He enjoys a good relationship with both of his parents. He is far too young and immature to suggest which arrangements are the most appropriate for his long term care.
[X]’s life needs to be settled and stabilised. He has just started school. This is a demanding developmental task for a young child. He will not benefit from his parent’s competing demands for his loyalty and attention. His life needs to be stabilised and settled. A shared care arrangement will do little to assist this.”[2]
[2] See family assessment report at page 14
Against the background of these findings, Mr McDonagh recommended that [X] continue to live with the mother and spend alternate weekends and half of each school holiday with his father.
The procedural history of the matter is complex. The mother first commenced proceedings on 3 October 2008. She was living in a northern suburb of Adelaide at the time. She sought a recovery order in respect of [X].
During the parties’ relationship, the parties had lived in [G], a small town approximately 100kms south of Adelaide. The father continues to live in [G]. He remains aggrieved at the circumstances of [X] and the mother leaving [G], when the parties finally separated.
The mother asserts that the father over-held [X] after she agreed to him spending a defined period with the father. This was the background to her application for a recovery order, which was made in the difficult period immediately following the parties’ final separation. Prior to the case coming to court, the father returned [X] to the mother.
On 7 November 2008 orders were made for [X] to live mainly with the mother and spend time with the father for a long weekend each fortnight. Given the disputed background, the case was fixed for final hearing and the family assessment report was ordered to be prepared.
This was the background to some final consent orders, which were made on 22 July 2009. No doubt the parties were strongly influenced by the recommendations of Mr McDonagh. They agreed essentially on the basis of his recommendations. [X] continued to live with the mother. Orders were made enabling him to spend time with his father on alternate weekends and during school holidays.
Significant logistical difficulties remained. The father continued to live in [G]. The mother in the northern suburbs of Adelaide. The father had recently lost his driver’s licence. The mother was restricted to public transport and said she could not get to [G].
In these circumstances a dispute arose as to where [X] was to be exchanged between the parties so that he could spend weekend time with his father. The father wanted [X] to be delivered to him in [G] or somewhere reasonably close to where he lived.
Over the objections of the father, I determined that the hand over should be at the main police station in Adelaide. I considered that
Mr Abbott should be able to travel to Adelaide by alternative means, until he got his licence back.
However, he did not immediately take up the opportunity to spend time with [X]. The father did not see [X] between 22 July and 18 October 2009. This led to an intensification of the communication difficulties between the parties.
The father complains that the mother was obstructive and difficult in respect of him resuming his relationship with [X], seeking to make maximum advantage of his transportation difficulties. The father did not regain his licence until December 2009.
On the other hand, the mother’s case is that the father did not tell her that he would not be attending at the police station. She believes he could have got the bus or arranged a lift with someone. She says she regularly attended at the police station and when Mr Abbott did not arrive, assumed he had lost interest in seeing [X].
In November 2009 the mother and [X] moved to live in [M]. It is her case that her lease in Adelaide had run out and she could not afford to rent other accommodation in Adelaide. Accordingly, she moved to [M] to live with family.
By this time, Ms Kingsbury had formed a relationship with Mr D, who lives in [S] in Victoria. The mother wanted to move with [X] to [S], so she could pursue her relationship with Mr D.
The mother says that she contacted the father in mid December 2009 and told him of her plans. The mother says he agreed to [X] moving to [S], provided he (Mr Abbott) could continue to see [X] in school holidays. The father denies any such conversation took place. He refutes any suggestion he agreed to [X] moving to [S].
The father was anxious to see [X] over Christmas. There were issues as to where the handover should be, given that [X] was by now living in [M].
The father wanted to stick with the police station in Adelaide. The mother proposed the father come to [M]. The father was annoyed he was not able to see [X] on Christmas Day and annoyed at his perception that he was being dictated to by the mother.
The paternal grandparents intervened. They agreed to go to [M] on
28 December to collect [X] so that he could spend one week with his father.
On 31 December 2009 the mother moved to [S]. The father was disinclined to return [X] to her.
The father has raised concerns about the mother’s parenting of [X] in his current affidavit material. These follow on from compendious complaints he made about her in the earlier proceedings. The current complaints are:
·The mother and Mr D are “on drugs”;
·Mr D supplies amphetamines;
·The mother has pushed [X] over, causing an injury to his eye;
·The mother has been violent towards [X]; and
·The mother has neglected [X], whom Mr Abbott described as “very skinny”.
The mother denies these allegations, other than she says she smokes cannabis occasionally. She says she is “in the process” of seeing a drug counsellor about her cannabis use.
On 1 February 2010 the father enrolled [X] at [V] School. [X] is still at the school. Needless to say, the mother was not consulted about the enrolment.
On 2 February 2010 the mother commenced proceedings in the Magistrates’ Court at [S] seeking a recovery order in respect of [X]. In her supporting affidavit she stressed that she was [X]’s primary carer. She deposed that [X] had never been away from her care for extended periods of time.
She also swore that she could not afford to return to South Australia, particularly as Mr Abbott was in arrears of child support in the sum of $2,000.00. He works [in the aviation industry]. She further deposed she had not spoken to [X] since 28 January 2010.
On 2 February 2010, Magistrate Mealey issued a recovery order in the [S] Magistrates’ Court. He dispensed with the requirement for formal service on the father. Accordingly the decision to grant the recovery order occurred without any input from Mr Abbott.
The recovery order was not executed. The Australian Federal Police required Ms Kingsbury to travel to South Australia so she could take delivery of the child. She could not do so immediately.
She travelled to South Australia on 8 February 2010. The police arranged to collect [X] at school on 10 February 2010. He did not attend the school that day. The mother believes the father deliberately withheld him from school to frustrate the recovery order.
On 10 February 2010 Mr Abbott applied to the [S] Magistrates Court for a stay of the earlier recovery order. Obviously he had discovered that an ex parte order had been made.
In the meantime, on 8 February 2010 he had applied to this court, seeking urgent orders in respect of [X]. Essentially, he seeks that [X] should live predominantly with him and accordingly the orders of July 2009 be discharged. He remains implacably opposed to [X] living in [S].
On 10 February 2010 Magistrate Barrow, in the [S] Magistrates’ Court, granted an ex parte stay of the recovery order, pending the determination of these proceedings.
In her response to the father’s application, the mother reiterates her application for a recovery order. In addition, in the interim, she seeks orders that would allow [X] to live with her in [S].
This is the background to this vexed case. It raises issues to do with relocation. Relocation cases are among the most difficult with which the court has to deal. The difficulties arise for the following reasons.
Australia is a free and democratic country. It is the right of any person to live how and where he or she chooses. There is no principle of law, which requires separated parents to live close to one another on an indefinite basis.
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned choose not to live together. These principles are difficult to reconcile, particularly at the interim stage, where evidence is necessarily hastily prepared and untested.
As a result of these competing considerations, the High Court has determined that relocation cases require a court to engage in a close and delicate analysis of the various issues involved, particularly the pros and cons from a child’s perspective of either relocating or remaining in the same location [see AMS v AIF (1999) FLC 92-852].
As a result of those considerations, it is usually considered preferable that issues of relocation not be determined at the interim stage, particularly as such decisions have potentially serious ramifications for children, particularly young children, in terms of their parental relationships.
In addition, for self-apparent reasons, the determination of a relocation issue at the interim stage may make the need for final hearing redundant and so deprive the child concerned of the opportunity for a court to engage in the close and delicate analysis of the various issues concerned. To use a popular metaphor, if relocation is determined at the interim stage, the horse may have bolted.
As such, the Full Court of the Family Court has indicated that it is usually preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regards to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone [see C & S [1998] FamCA 66].
Essentially, at the interim stage, the court is directed to exercise considerable caution about unilateral relocation. The reasons for this caution are obvious: parents should not be encouraged to feel that they can take things into their own hands and in the heat and emotional disconnection of separation or some other crisis, make decisions which will serve their ultimate long-term aims.
Obviously these concerns are heightened in circumstances in which there are already court orders in place in respect of care arrangements for a child and the move in question has implications for the application of the orders concerned. Such is the case here. [X] cannot easily spend weekends, during term times, with his father if he lives many hundreds of kilometres away from [G].
In my view, as far as possible, unless there are significant concerns relevant to the welfare of the child concerned, issues to do with relocation should be determined, as far as possible on a metaphorical level playing field unaffected by the actions of one parent who has moved, invariably in opposition to the views and interests of the other parent.
In Morgan & Miles [2007] FamCA 1230, Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“It is highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me that the comments of Warnick J in C & S remain apt and relevant to determination of these cases.”
The interim hearing came on before me on 5 March 2010. I raised these issues about relocation with Ms Ross, counsel for the mother, in the context of her client’s actions in moving first to [M] and then to [S].
I indicated to her, in all the circumstances of this case, it seemed inherently unlikely that the mother had the father’s clear and unequivocal approval to move [X] to either location.
As such I was gravely concerned that the mother wishing to move [X] to [S] was effectively a unilateral move. I also raised my concerns about the workability of a regime of the father spending time with [X], if he lived in [S] and the father continued to live in [G].
As such, I enquired of the mother whether she would countenance moving closer to [G], pending a further final hearing, which seemed inevitable notwithstanding the final orders recently made, so that the intent of the orders of July 2009 could be re-implemented until that hearing. That is, that the father spent time with [X] on alternate weekends and during holidays.
I was told the mother could not return to Adelaide for financial reasons. She could however move to [M] but not for a few weeks, most probably not until the start of term 2 in mid-April.
Upon her return to [M], she anticipated Mr Abbott could spend time with [X] on alternate weekends, particularly if they met half way. In those circumstances, she proposed [X] remaining in his father’s care until he finished out the term before resuming in her care from term 2 of 2010.
Ms Kingsbury had travelled to Adelaide for the hearing of 5 March 2010. I made orders to allow her to spend an extended weekend with [X]. I indicated would deliver ex tempore reasons on 10 March 2010. Due to time and logistical constraints, particularly that a final hearing was in progress involving an incarcerated witness, it was not possible for the judgment to be delivered then.
I indicated therefore, after providing brief oral reasons and delivering the orders set out at the commencement of this judgment that I would provide written reasons on 16 March 2010. These are those reasons.
Legal principles
[X]’s best interests are the paramount or most important consideration in this case. The factors which determine a child’s best interests are set out in section 60Cc of the Family Law Act.
The same principles apply at both the interim and the final stage. The distinction being that interim hearings do not determine long term arrangements for the care of a child, whereas final proceedings do.
Necessarily, the nature of an interim hearing is different in quality to the hearing which takes place at the final stage. The interim hearing takes place in a shortened form, without the opportunity for cross-examination. In addition, very often, at the interim stage, there has been insufficient time for all the relevant evidence to be collected.
It is frequently the case that the court is called upon to make interim determinations, against a background of urgency, in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child’s best interests.
In Goode & Goode the Full Court directed that, in determining interim hearings, after identifying the competing proposals of the parties; the issues in dispute; and any agreed issues; the court should:
·Consider the section 60CC matters relevant and, if possible make any relevant findings of fact;
·Decide whether the presumption in section 61DA should be applied or if it is rebutted because:
ØThere are reasonable grounds to believe child abuse or family violence has occurred;
ØOr, in interim proceedings only, it would not be appropriate to apply the presumption;
·If the presumption is rebutted or found not to apply then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child’s best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent, unless it is contrary to the children’s best interests as result of the consideration of any relevant section 60CC matter or is impracticable in the terms of section 65DAA(5);
·If neither equal time or substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child, when considering applicable matters in section 60CC;
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
The provisions, in the Family Law Act1975, relating to children, rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm, as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in how a court determines what is in a child’s best interests by section 60CC(2).
The aims and principles of the part of the Family Law Act [section 60B], which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm, from being subjected to abuse, neglect or family violence.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act section 61DA]. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption, at the interim stage, if circumstances exist which make it inappropriate for it to be applied [Section 61DA (3)]. The sub-section is likely to be pivotal, in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
Section 60CC factors
Notwithstanding the highly contradictory evidence in this case, which remains untested, it would seem to be the case that [X] has the potential to benefit from having a meaningful relationship with each of his parents. I reach this conclusion on the basis of Mr McDonagh’s assessment. He considered that [X] had a good relationship with each of his parents.
It has consistently been Mr Abbott’s position that [X] is at serious risk of harm, if he remains in Ms Kingsbury’s predominant care. He asserts that [X] will be either neglected or abused because his mother has serious substance abuse issues.
However, notwithstanding these concerns, he consented to the orders of July 2009, which placed [X] in Ms Kingsbury’s predominant care. In addition, Mr Abbott’s concerns were not borne out by the observations of Mr McDonagh, who found [X] to be a well cared for child.
The father has reiterated his earlier concerns and added to them. He concedes however that many of his concerns about Mr D and the mother’s behaviour in [S] arise as a result of hearsay.
The mother has also held longstanding concerns about the father and his use of alcohol and drugs. Like Mr Abbott, Ms Kingsbury is unable to muster any independent evidence to corroborate her concerns.
The allegations raised by each of the parties are highly disturbing. They are incapable of resolution at this stage. The concerns were not borne out in [X]’s presentation to Mr McDonagh.
In these circumstances, I do not believe that either parties parenting of [X] is likely to constitute an unacceptable risk to [X] himself. In these circumstances, considerations of how [X] may best benefit from having a meaningful relationship with each of his parents must be given pre-eminence. This consideration is of relevance in the context of the mother’s desire to move [X] to live in [S], in the face of the father’s opposition.
[X] is too young for his view, even if it could be ascertained, to be instrumental in shaping the outcome at this stage. As previously indicated, I accept that [X] has a significant relationship with each of his parents and almost certainly also with his paternal grandparents.
In my view, it is readily apparent that both parties have shown a flawed capacity to include the other in parenting decisions regarding [X] and to properly fulfil the responsibilities incumbent in being a parent.
The mother seems to have had little regard as to how [X] could maintain his relationship with his father, in the light of her decision to move first to [M] and then [S]. Similarly, Mr Abbott does not seem to have effectively told Ms Kingsbury that he would not be taking up the time available to him to spend with [X] between July and November of 2009.
Without doubt, the parties’ communication skills are appalling.
Mr McDonagh believed that this was due to the parties’ immaturity and the muddled nature of their relationship. I agree with this assessment.
A decision to change a child’s living arrangements so that it makes significantly more difficult for a child to spend time with a parent is by legislative definition a major long term issue in respect of a child [see Family Law Act section 4].
I am satisfied that there was scant consultation between the parties in respect of this issue. Again, this is a major consideration in terms of the mother’s desire to relocate [X] to [S], particularly as the orders of July 2009 envisaged that the father would spend time with [X] on alternate weekends.
It is clearly impossible for the orders of July 2009 to be implemented as intended, in respect of the father’s weekend contact, if [X] lives in [S] and the father continues to live in [G]. Even if the mother moves closer to the father, to [M], the practical difficulties will remain significant. As I understand it, it is in excess of 400km between [G] and [M].
At this interim stage, the case involves significant concerns regarding the parental capacity of both parties. Up to this stage, the mother has not been able to provide [X] with a high level of stability, particularly so far as his accommodation needs are concerned. These difficulties may flow from financial and societal factors, largely beyond the mother’s control. However, equally possibly, there may be some significant deficit at large in the mother’s household.
Once [X] came into his care, Mr Abbott has shown scant regard for
Ms Kingsbury’s feelings or how [X] would maintain a level of relationship with his mother. The parties’ current circumstances, when combined with Mr McDonagh’s assessment, can lead to only one conclusion – the parties’ parental relationship is highly dysfunctional.
As a consequence of this state of affairs, [X]’s overall welfare and his ability to be emotionally secure and to develop appropriately must be in some jeopardy. These concerns are heightened by the parties’ mutual allegations that the other is drug dependant, a circumstance which is partly corroborated by Ms Kingsbury. In these circumstances, I have come to the conclusion that it is appropriate that [X] be independently represented in these proceedings.
The orders of July 2009 pointedly did not deal with the issue of equal shared parental responsibility. Given the highly dysfunctional level of the parties’ parental relationship and their inability to make consensual decisions regarding [X], it seems to me to be inappropriate, at this interim stage, that the parties should have equal shared parental responsibility for [X].
I am greatly concerned that both parties have demonstrated a facility to use self-help, so far as arrangements for [X]’s care is concerned, when it has suited him or her. The nature of the parties’ relationship makes it inherently unsafe for a court to proceed on the basis of one parties’ evidence alone. It is regrettably that each party has been able to secure an ex-parte ruling in his or her favour in the past at the [S] Magistrates’ Court.
This is a case which calls for some greater scrutiny than has previously been available. Since the parties separated (and almost certainly in the period before hand) [X]’s life has been one of instability and conflict. Regrettably, at this stage, both parties’ proposals envisage the continuation of this level of uncertainty and instability.
If the father’s position is acceded to, it will mean that [X] will be removed from the care of his mother. Regardless of Mr Abbott’s criticisms, it is clear that Ms Kingsbury has provided more of [X]’s care than him, in the period approaching two years since the parties separated.
On the other hand, if the court accedes to Ms Kingsbury’s position, it will mean that [X] will have to accommodate a change to another school and his prospects of maintaining his relationship with his father are likely to become more rather than less problematic.
I accept that Ms Kingsbury is significantly disadvantaged financially. However, I am not persuaded that the circumstances, which confronted her at the end of 2009, were characterised by such a level of emergency that her unilateral move of [X] away from the metropolitan area of Adelaide was justified. Given her previous interactions with
Mr Abbott, I consider that she must have known that this move, particularly to Victoria, would have intensified the conflictual nature of her relationship with Mr Abbott.
In the extremely short term, I have come to the conclusion that [X]’s best interests will be served if he remains in as stable a situation as possible. Given the state of flux surrounding her circumstances, the mother is not in a position to offer [X] a high level of stability. She is unsure precisely where she will be living, certainly pending a final decision being made about [X]’s care.
At this stage, I know very little about her relationship with Mr D.
In addition, it does not appear to be the case that Ms Kingsbury has secured accommodation for herself in [S]. In addition, one of the more significant aspects of these proceedings is that Ms Kingsbury is now well aware of the difficulties incumbent in a parent electing to unilaterally relocate the residence of a child, particularly at the interim stage.
In all these circumstances, the mother needs to consider her position. Notwithstanding that [M] is considerably closer to [G] than [S], I continue to have significant reservations about the workability and practicality of the mother’s proposal that the father can maintain a significant level of relationship with [X], if she and he ([X]) live in [M].
At the end of the day, the parties were unable to facilitate the orders of July 2009, when their respective homes were separated by a distance of around 120km. This does not bode well if a distance of around four times as great is involved.
[X] has recently had an opportunity to spend a long weekend with his mother. I am told the weekend went well. It must be a good thing if [X] had the opportunity to re-engage with his mother, given the uncertainty which has prevailed for the last two months. Both parties have contributed to this degree of uncertainty and instability for [X].
At this stage, [X] needs an independent agent to advocate on his behalf. This agent – the independent children’s lawyer – may also choose to explore extraneous sources of evidence, apart from the parties concerned. It will take the independent children’s lawyer some time to become acquainted with the complexity of the circumstances surrounding [X] and his parents.
At this stage, I have come to the conclusion that the father is better placed to provide an environment of stability for [X] than is the mother. Ms Kingsbury is considering her position. Ultimately, she may determine that she is able to return to live in Adelaide, pending the final hearing of the matter.
Clearly, given the difficult issues of relocation which the case raises, when coupled with the mutual allegations of serious parental misconduct and dysfunction, this is a case which requires a final hearing sooner rather than later. Accordingly, I will allocate the earliest final hearing date available.
The provision of this date will provide the parties with a framework to contemplate when considering what are the appropriate interim parenting arrangements for [X]. It would seem to me that the optimal interim arrangement would be one that would enable [X] to be able to interact with each of his parents on a relatively frequent basis.
As such, it would be preferable if the parties lived some proximity to one another, particularly in the period leading up to the final hearing. In my view, this is not a case which pre-disposes itself to the determination of relocation issue at an interim stage because of its indicia of emergency. Rather, Ms Kingsbury’s application and Mr Abbott’s response to it requires a more detailed and nuanced examination.
For all those reasons, pending the appointment of the independent children’s lawyer and until Ms Kingsbury has determined precisely where she will live, I propose allowing [X] to continue to live with his father, in [G], notwithstanding the deficits incumbent in such an outcome, the chief of which it interrupts [X]’s significant level of relationship with his mother.
However, I propose revisiting the issue in the short to medium term, following the appointment of the independent children’s lawyer. In these circumstances, it is appropriate that Ms Kingsbury have the opportunity to spend an extended period of time with [X] in the forthcoming Easter school holiday period.
In the absence of other proposals from the parties, I propose that the father deliver [X] to the mother at the [M] Post Office, at the beginning of the Easter school holiday period. I propose that the next hearing of the matter be at the end of the school holiday period. This will mean that [X] can be returned to the father, if necessary, at the Family Courts Child Care Centre.
It is also important that [X] have an opportunity to communicate regularly with his mother by telephone. I propose setting 6:00pm each Saturday, Monday and Thursday for this communication.
It is important that the parties note that the dispute between them is not [X]’s dispute. In these circumstances, I will make an order restraining each of them from denigrating or abusing the other, in the presence or hearing of [X].
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 16 March 2010
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