ACCOLA & MADDIN
[2020] FCCA 3643
•10 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACCOLA & MADDIN | [2020] FCCA 3643 |
| Catchwords: FAMILY LAW – Parenting – interim hearing – children aged 14 and 10 years – final parenting orders made in September 2016 for the children to live with the father in Adelaide and spend time with the mother in Queensland – mother has retained the children – mother alleges youngest child has been exposed to psychological harm in the father’s care – father seeks delivery up – assessment of risk – best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60CC, 60(CA) |
| Deiter & Deiter [2011] FamCAFC 82 Goode & Goode (2006) FLC 93-286 Morgan & Miles (2007) FLC 93-343 |
| Applicant: | MR ACCOLA |
| Respondent: | MS MADDIN |
| File Number: | ADC 1214 of 2016 |
| Judgment of: | Judge Brown |
| Hearing date: | 10 June 2020 |
| Date of Last Submission: | 10 June 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 10 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dickson |
| Solicitors for the Applicant: | Belchamber Legal |
| Counsel for the Respondent: | Mr Wright |
| Solicitors for the Respondent: | Hannay Lawyers |
ORDERS
The mother deliver up the children X born in 2009 and Y born in 2005 (‘the children’) to the father at the Suburb G Police Station at a time to be agreed between the parties but failing agreement, at 9.00am on Saturday 13 June 2020.
The father is to have telephone communication with the children pending his collection of them each night at 6.00pm Queensland time.
If the mother is in Adelaide she spend time with the children on dates and times to be agreed between the parties.
The mother have telephone/facetime communication with the children pursuant to the 30 September 2016 orders.
The mid-year school holiday time pursuant to the 30 September 2016 orders is suspended.
Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 18 August 2020 at 9.30am, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.
The parties’ legal representatives be at liberty to inspect and copy all documents produced to date pursuant to subpoena by Dr D and H School (SAVE & EXCEPT for those marked confidential).
In the event any party (or the Independent Children’s Lawyer) in these proceedings seeks to rely upon any material produced pursuant to subpoena then such documents shall be put before the Court by way of affidavit to be filed and served as follows:
(a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and
(b)annexing such material as is considered relevant, with
(c)the affidavit to be paginated, indexed and exhibits tagged.
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children X born in 2009 and Y born in 2005 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.
Further consideration of the matter is adjourned to 26 August 2020 at 9.30am for directions and, if necessary, to allocate a date for final hearing.
Liberty to apply.
IT IS NOTED that publication of this judgment under the pseudonym Accola & Maddin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1214 of 2016
| MR ACCOLA |
Applicant
And
| MS MADDIN |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment were delivered orally immediately following the interim hearing concerned. Given the importance of the issue to the parties concerned, it is appropriate that the reasons be transcribed and provided to each of them.
This afternoon I have to deal with an urgent matter. It concerns an application for the delivery up of a child on the basis that there is an existing court order, which mandates parenting arrangements for the child concerned and, indeed, her sister, which have not been adhered to.
One party assert that the court should enforce the order. The other asserts that there is a good reason, relating to the health and safety of the child concerned for the operation of the order to be suspended, whilst further inquiries take place.
Background
The parties to the proceedings are Mr Accola, to who I will refer to as the father in these orally delivered reasons for judgment, and Ms Maddin, to whom I will refer to as the mother.
The children concerned are Y, who was born in 2005. So Y is 14 years old at the present time. The other child concerned is X, who was born in 2009.
By way of background, the parties began a relationship almost 20 years ago now in 2002. They married in 2004 and finally separated, in controversial and difficult circumstances, on 18 March 2016.
The father commenced proceedings a very short time after the parties had separated – in fact, on 6 April 2016. At that stage, he sought what is commonly called an equal-time arrangement in respect of the two children concerned.
It was his evidence, which I do not think has ever been tested at a final hearing that during the latter stages of the parties’ relationship the mother had formed a relationship with a person from Queensland. That person appears to be the individual the mother has now married, a Mr J.
The circumstances of that relationship took the father unawares. Thereafter the mother left the home with the two children concerned. It is Mr Accola’s position, at the time that he had not seen the two children for a significant period of time.
The mother responded to the application on 8 April 2016, and at that stage it was her position, on both an interim and final basis, that the children live with her but she be able to relocate to Queensland.
On 5 May 2016, which is the first time I had any involvement with the matter, orders were made for the children to spend regular alternate weekends with their father as well as time on Wednesday.
The parties were referred to a child dispute resolution conference with Dr K. Dr K, in respect of the parenting relationship between the parties, described the father as presenting as focused and clear in his views. In his views, the mother had to either choose her relationship with the children here in Adelaide or her “boyfriend” in Queensland.
The mother, on the other hand, presented as distressed and overwhelmed. It was her position, at the time, that there were issues of power and control in her relationship with the father. It was essentially her position that it was impossible for her to co-parent with the father because he would psychologically overpower her and manipulate her or the children.
So at that early stage there was significant emotional turmoil in the parties’ relationship. There were issues of control and coercion. The backdrop of all that was the mother’s desire to live with the person whom she loved and whom she has now married in Queensland, which is obviously far away from where the children had grown up.
By way of background, as I understand it, the father is 51 years of age and the mother is 47. The father has business interests in Adelaide. I think he is a builder or something like that. The mother in the past has worked in public service.
The mother’s behaviour, after 10 August 2016, to a certain extent, vindicated what the family consultant had said of her. She felt unable to remain in South Australia and continue on with the litigation commenced by the father.
This was the background to the orders that were made on 30 September 2016. They were final orders, and at the time each of the parties was legally represented. The orders had significant notations, and the major notation was that the mother intends at this time to relocate to Queensland in February 2017. In that context, the parties had agreed on arrangements for the care of both Y and X, both, in the event of the mother being in Adelaide until she went to Queensland.
The parties also agreed that they would enter into a binding Child Support agreement in respect of living expenses for the children. The mother was to pay the travel cost to spend time with the children, and there were issues about private school fees.
But at that stage it was agreed that the parties would have equal shared parental responsibility for the children concerned, and in general terms they would live with their father during the term time in Adelaide, and the mother would have significant periods of time with the children during the shorter school holidays and one half of the long school holidays.
The mother, as the notation indicated, moved to live on the Region B on Boxing Day in 2016, and, as I have already indicated, she married Mr J on 21 April 2018. There were, thereafter, ongoing acrimonious property proceedings.
I say they were acrimonious because there were significant issues about discovery which I had to adjudicate from time to time, but those property proceedings were settled on 14 November 2017. There continue to be long-running issues to do with child support and those matters are returning to me, I think, sometime later this year.
As is well-known to all concerned, from late March of this year onwards the world has been enveloped in the crisis relating to the COVID-19 pandemic, which made travel within Australia difficult, but did enable travel, as I understand it, in respect of compliance with orders of this Court and the Family Court in respect of arrangements for the care of children.
Against this background, Y and X spent time with their mother in south-east Queensland on 2 April. That was not the usual arrangement but it was agreed, and it was also implicit in what was agreed that the children would return to South Australia on 20 April 2020.
By way of background, although the earlier orders envisaged the children going to L School, I think it is now the case that the older child, Y, goes to H School. I think I read in the material that she has a scholarship to attend that school and she is a child who wants to be an artist when she grows up, and I think I read it in the affidavit material that H School has a strong arts program.
It is common ground between the parties that the children did not return to Adelaide as scheduled on 20 April 2020, and that is the genesis of the current proceedings. The father wasted no time in agitating what he considered to be a breach of the court order and the agreement which the parties had, and he commenced these proceedings on 24 April 2020.
For reasons which are not altogether clear to me they have not had an expeditious passage through the court process and, in fact, they were listed today for the first time. From my perspective, due to the urgency of the matter, it is appropriate that I deal with the matter sooner rather than later.
An order that confers equal shared parental responsibility on parents in respect of a child requires parties to consult with one another about major long-term issues. The expression “major, long-term issues” is defined in section 4 of the Family Law Act 1975 (Cth) (‘the Act’).
Amongst other things, includes a decision which relates to a change in a child’s living arrangements that makes it significantly more difficult for a child to spend time with a parent. Essentially, it is the father’s position that the mother is attempting to change the long term living arrangements for the children without reference to him or his consent – this is what lawyers call a unilateral relocation application.
Relocation issues arise, as the parties are aware from what happened in 2016, when one parent, for very often legitimate reasons, wishes to move with a child or children far away from the other parent concerned. As such, the Court is called upon to balance competing interests which really cannot be easily reconciled.
Freedom of movement on the one hand - individuals are entitled to live how and where they want - and Ms Maddin was entitled to pursue her relationship with Mr J and live in Queensland if that is what she wanted to do.
On the other hand, a child or children have a right to maintain a relationship with each of their parents. That is very difficult when a long-distance relocation is involved, notwithstanding the benefits of modern travel and communications.
In any event, regardless of what was thought at the time, the parties resolved that very difficult issue of relocation, no doubt on the basis of what Ms Maddin said to the family consultant in August of 2016, when the final consent orders were made.
The mother perhaps thought it was a deeply unfair outcome and one not in the best interests of the children that they not go to Queensland with her, but, from her perspective, she did not have the energy, perhaps she did not have the financial resources, to engage in litigation with Mr Accola.
Anyway, the order was made, and it is clear from the notations that everybody knew what the orders envisaged – that the relocation of the children from Adelaide to Queensland would not occur and as a consequence the children would live predominantly with their father.
In the period since, it would seem that the children have regularly gone to Queensland and their mother has regularly come to Adelaide to see them. As a consequence, it would seem to be the case that the children know their mother well, and I would hope that they love her dearly.
I have the school reports in respect of both Y and X. In relation to X I have her report from the M School for the last semester of last year, and it says she has got high social skills, she communicates well, and it is said of her that she can be proud of her consistent and diligent approach each day in the classroom.
Y was said to have made a very smooth transition into the senior school, and she is described as mature and positive in her attitudes towards her activities and her compadres. She is also said to have some outstanding academic results, particularly excelling in the advanced arts class and in performances on stage.
I appreciate that it may be unwise for me to put too much weight into school reports in this day and age. It is the case, I think, that, for all sorts of reasons, teachers want to be supporting and encouraging of their students in reports, but those reports, as Ms Dickson who is the father’s counsel in these proceedings has categorised them, are glowing.
It is Mr Accola’s evidence that X has struggled more with the fallout from what happened in late 2016 than has Y. It is his position that she has struggled with what happened. Whether that is so or not, I am, of course, not in a position to say definitively one way or the other at this stage.
It is his case that X has displayed all sorts of worrying psychological behaviours for a relatively lengthy period of time. Against that background, he says he engaged a psychologist, Dr D, in early 2020 to provide cognitive behavioural therapy for X, after there was a GP referral.
The reason for this referral, on his case, is that since she was a young child X has had extreme and regular mood swings, and has behaved in an angry and violent way towards her older sister, Y, to her school friends, and to both him and to the mother.
It is a significant part of the father’s case that the children’s paternal grandparents share a home with him and have a close relationship with both children. In February of 2019 he asserts that X said she wanted to kill one of her fellow students at school called N.
This also led to other engagements with clinical psychologists at the child’s school. Initially, the father’s position is that X, was somewhat resistant to seeing Dr D and said she did not want to see him again, but he persuaded her to try again.
As I say, at the present time X is ten years of age. She will be eleven at her next birthday. It is certainly the father’s position, whether it is accurate from Dr D’s perspective or not, that X lacked maturity about issues to do with living with her mother.
In this context, it is the father’s case that there have been issues in respect of the child separating both from him and separating from her mother. In fact, it is his case that, in the past, X has said she does not want to go and see her mother, and he has had to be proactive in getting her to board a plane.
Essentially, it is his position that his engagement of Dr D indicates that he is a parent who is interested in the psychological wellbeing of his children, and there is an intricate and complicated psychological matrix surrounding both children, but X, due to issues to do with her own psychological make-up, is particularly vulnerable to the issues arising from her parents’ separation, and the mother’s relocation to Queensland and, it would seem, a significant history of parental conflict.
In any event, it is the father’s position that having agreed to the April visit and prior to it taking place the mother was intent on engineering a situation, in effect enlisting Dr D to ensure that there was sufficient evidentiary basis which would justify her not returning the two children concerned. Essentially, what this case turns on is what Dr D has said have been the effect of his consultations with X.
Dr D consulted with X via a telehealth appointment, which Ms Maddin organised on 15 April. Dr D indicated in a report dated the next day, which he sent to Ms Maddin at her email address, that he had been seeing X for four sessions.
X’s father had participated in some sessions, and he (Dr D) had taught X some relaxation methods, and the child had also apparently debriefed about incidents which she found stressful. What those incidents were and what was the origin of the stress, Dr D does not say. Then he goes on to say:
“On passing on incidents that are concerning, X reports that her father mistreats her in various ways which includes yelling at her when she shows distress, swears at her, compares her to her older sister and tells X that she is a bad girl, strongly criticises X when she makes minor mistakes, blames X when things go wrong in her life and exposes X to his own strong moods. X reports that she speaks to her mother every night, and that her father appears to object to this and might listen to her conversation. X considers that her father objects if X talks about ways her father treats her. X reports that put-down comments by her father occur most days. He stops for a few days after the GP or I have spoken to him. X spoke of a recent incident when her father grabbed her and dragged her downstairs. X told her father that he was hurting her, but he denied that she would be feeling hurt. X said he left red marks on her arm. X appeared more relaxed when I spoke to her on 15 April. X was then staying in her mother’s house on an arranged Family Court order.”
Then, this is the troubling bit:
“X told me that she hates her life, and she thinks of ending her life, and she has looked up on the internet ways to do this that will not hurt her. X said that now she thinks of ending her life only twice a week. Previously, X thought of killing herself every day. X said that if she kills herself then her father would not be able to hurt herself. X said, therefore, that she didn’t want to come back to Adelaide because she was frightened that the screaming and shouting will start again.”
On this basis, Dr D recommended that the child not be returned to Adelaide, until the matters raised in this letter be investigated. He further said he would make a notification to the South Australian Department of Child Protection. As I indicated to each of the parties in the running of the case, the department concerned has received that notification and has assessed it as not reaching the statutory threshold for intervention.
It is the father’s position, in effect, that he does not know what the mother said to X prior to this tele-consult with Dr D. He objects to Dr D making recommendations without making any great assessment of his relationship with the child concerned.
By necessary implication, the father would assert that give the difficult dynamic between the parents; the historical background to how the mother came to be in Queensland; and all the issues that these circumstances throws up; the appropriate mechanism to investigate how X is travelling currently, in an emotional sense, is through a detailed family assessment report.
Such a report will include the taking down of the children’s verbatim comments and an attempt made to place them in context. More significantly, some appropriately qualified expert will have an opportunity to assess the actual parents/child relationships concerned by observing them directly, particularly so far as the father is concerned. In this particular case, the implied criticism of Dr D is that he did not get such an opportunity.
In addition, the mother relies on a report from a Ms F, who is a clinical psychologist, who was employed at the H School. That, as I say, is the school attended by Y. Ms F has been seeing Y, but not X, since October of 2019 and seen her on five occasions.
Y apparently came to see Ms F because of stress at home, which she has reported arises from her concerns about the father’s treatment of X. Y has said that she has seen X thrown across the room (by her father) and the father do and say the most awful things – terrible things, which Y has refused to elaborate upon. She describes living with the father like walking on eggshells.
On this basis, Ms F, although she has not met X, says that she is concerned about the living arrangements for both children. Interestingly, she describes Y as a mature, resilient and intelligent young adult who is said to be unhappy and often fearful at home, mostly because of her concerns for X. However, Y apparently wants to remain in South Australia because of her love for her school, dance and her friends.
Y is apprehensive about the prospect of moving and, in her words, starting again in Queensland. However it is reported on Y’s behalf the view that X will be a different child and a much happier one if she moves to live in Queensland.
On this basis, Y, at least through Ms F, advocates that the children be separated, with X living in Queensland whilst she, herself, remains living in South Australia. To Ms Maddin’s credit, in her affidavit material, she concedes that Y would prefer to live in South Australia.
For his part, the father resolutely resists any assertion that he has mistreated the children or exposed them to any abuse. In this context, abuse is an expression which is defined in the Act.
It includes an assault of a child, and it includes causing a child to suffer serious psychological harm including, but not limited to, when that harm is caused by the child being subjected to or exposed to family violence.
So in effect, it is the mother’s case that there is evidence that X has been exposed to some species of psychological harm and, quite possibly, so has Y but to a lesser extent, which emanate from the father and she is taken steps to protect the children.
On the other hand, the father asserts that X is something of a troubled child and that the aetiology of her distress is complex. But that he has taken appropriate steps to examine that, including engaging Dr D, to attend to her distress.
Given these factors, it is, from his perspective, exceedingly regrettable that Dr D has engaged in some form of prejudgment of what he would assess to be a highly complicated matter, after a handful of visits and particularly when he would say that X is a child who says various things at various times, depending on with whom she is in dialogue.
The mother in Queensland obtained an ex parte family violence order, against the father, naming him as the defendant on 21 April this year. The father asserts that there is no proper evidentiary basis for such an order and it has been obtained for tactical reasons.
I think he says in his affidavit that he has never even stepped foot in Queensland. Whether I have got that right or whether I have got that wrong I am not sure. But the father would assert that it is further evidence of the mother’s disingenuousness that she would seek such an order on spurious grounds, he would assert, only to blacken his name.
The mother is, for her part, highly critical of the father for emails that he is said to have sent to Y about how she can compile letters to secure her return to South Australia. Essentially, she alleges the father is co-opting her into the acrimonious dispute between the parties, which can only be harmful to her emotional wellbeing.
Some legal considerations
It is in this difficult context that I must determine the delivery-up application. I do so in the context of an interim hearing which arises against a background of great family crisis and controversy. Because of the urgency, the matter has to be listed as quickly as it can.
Due to the pressure of business on the Court, I cannot have a lengthy hearing involving lots of oral evidence and cross-examination of the parties themselves. As such, I cannot make findings of fact relating to credit at this interim stage.
In addition, I have a limited amount of expert evidence. I have Dr D. I have Ms F. But, certainly from the father’s perspective, their objectivity and what they know of the complex background to this matter is controversial.
The views of children, of course, are a matter that can be taken into account in proceedings, but, as I will come to in due course, I have to take account of the maturity of the child concerned and any other factor, which may be impacting upon the child concerned.
In a case like this, involving highly acrimonious and longstanding proceedings, it would be naive, I think, that I did not consider the impact on a child of comparatively tender years such as X on her views which - her emotional loyalties to each of her parents must be called into question.
So the hearing at this stage is significantly curtailed. I have to be careful, in the words of the Full Court in Goode & Goode[1], about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. I am to look to less contentious matters.
[1] Goode & Goode[1](2006) FLC 93-286,
In a case like this one, there are few, if any, less contentious matters. The major one that cannot be called into contention is there is a final order of the Court made on 30 September 2016, which dealt with the relocation controversy between the parties and which definitively stated that the children would live in South Australia with their father.
That is, of course, about the only matter which is likely to be in agreement between the parties other than, thereafter, the mother has regularly interacted with the children concerned, and it would seem to be the case that the father has facilitated that relationship.
So I am relatively confident that I can draw the conclusion that the children have a significant level of relationship with each of their parents. But the issue of relocation has not gone away, and the authorities in respect of relocation are relatively uncontroversial although the issue of relocation itself remains a very vexed one.
I think it was Kirby J, of the High Court, who said that every relocation case requires its own delicate analysis because each relocation case turns on its own facts. As such, at the interim stage the Court has to be very careful about being drawn into issues which are more properly determined at a final hearing stage, and relocation is one issue which in my view is classically one which is a final hearing issue.
However, in cases such as Morgan & Miles[2]the Full Court of the Family Court has indicated that issues relating to relocation should only be determined, at an interim stage, if there is an issue of such significant emergency that justify a relocation. This, essentially, is the mother’s case. She says, in effect, that the situation surrounding X is one of such emergency that the Court really has to act.
[2] Morgan & Miles (2007) FLC 93-343
As I have observed to each of the parties’ lawyers, that really is an issue about assessing risk. What is the risk that X will be exposed to some form of abuse in the future or she will self-harm in the way that is alluded to in the report of Dr D.
As with all cases, fundamentally, I have to made the order which I think is in the best interests of both children, and that requires me to look at a list of matters in section 60CC which are categorised in two ways, primary considerations and a longer list of additional considerations.
I have to consider the benefits to a child of having a meaningful relationship with each of his or her parents and, significantly in this case, the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
It is, I think, significant that pursuant to section 60CC(2A) I am directed to give greater weight to the primary consideration relating to protective concerns.
So that, again, is the gist of this case. The mother’s case is that the protective concerns which are raised in her material should be given greater weight to issues relating to the unilaterality of her retaining the children and her assertion that she was reacting to a situation of particular emergency - justify her actions.
Risk is a part of life, and in a case, Deiter & Deiter,[3] the Full Court said of risk as follows:
“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”[4]
[3] Deiter & Deiter[3] [2011] FamCAFC
[4] Ibid at [61]
In another case, Slater & Light,[5] the Full Court expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.”[6]
[5] Slater & Light[5][2013] FamCAFC 4
[6] Ibid at [37]
I cannot predict with any certainty what X will or will not do if she comes back to South Australia. I am not really sure what her concluded wish is or is not, in respect of the issue. For all I know, she may not have a wish one way or the other. I have to assess the risk. So I have got to look at what has happened in the past. So X has, from her father’s perspective, exhibited some distressing behaviour. He has arranged psychological support for that and, at least on the basis of her school report, she is doing reasonably well.
In terms of Y, Y has some complaints about her father, but she wants to come back to this State. So Y is – and she is said to be a mature child. I appreciate that Y will not be a witness in these proceedings and it would be inappropriate that she would.
So a more difficult aspect is what will happen if X comes back to South Australia, in controversial circumstances, of which she must be aware to a large extent. Will she harm herself, what is the risk of that and what steps should be taken in regards to it.
I think in the material there is evidence that she has scratched herself, and caused wounds and things of that nature. There is deep controversy about what is the source of X’s anxiety, and distress and its relationship to all manner of issues in this case. Of course, the various controversies arise between the parties in the face of a very difficult and acrimonious relationship.
Of course, regrettably, it is not unknown for people to mistakenly believe something has occurred which is reported to them second hand, or to exaggerate an incident or just to be misled by the power of emotional circumstances. So although I know little about Dr D’s qualifications, even though obviously he has, it would seem, a PhD in something – I am not sure what. I have not got his CV. It is not beyond the bounds of possibility that his opinion is not right, and I have to be careful about relying on conjecture.
So essentially, I have to make some assessment of the risk against the background, when the two children concerned have lived in their father’s care for the last four years with the mother’s ostensible acquiescence and where there is evidence that the engagement of Dr D recently was unilateral. So I have some concerns that the degree of risk is perhaps magnified. I also have to think about issues to do with Y and her wishes to be an artist.
I have got to think about where the children are going to go to school, and, above all, it is an issue to do with relocation - quite possibly, if Y’s analysis is correct, an issue to do about separation of siblings. Those are issues for final hearing.
On balance, I have reached the conclusion that the risk as delineated by the mother is not of such moment that the children should be relocated to Queensland, and in my view a proportionate response to the risk identified is the appointment of an Independent Children’s Lawyer and a direction that the children concerned are interviewed by a family consultant. These are Adelaide proceedings, and that interview should be in Adelaide.
On that basis, I propose to make orders as set out at the commencement of these reasons for judgment.
I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for judgment of Judge Brown.
Associate:
Date: 8 April 2021