ACCOLA & MADDIN (No.2)
[2020] FCCA 3644
•18 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACCOLA & MADDIN (No.2) | [2020] FCCA 3644 |
| Catchwords: FAMILY LAW – Parenting – children aged 14 and 10 years - interim order made on 10 June 2020 for the mother to deliver up both children to the father – only the eldest child was delivered up – whether the delivery up order should be discharged in relation to the youngest child – assessment of risk of psychological harm to the child. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 60CC(3)(f), 60CC(3)(i), 68LA |
| Cases cited: AMS v AIF; AIF v AMS (1999) FLC 92-852 M & S (2007) FLC 93-313 Rice & Asplund (1979) FLC 90-725 Slater & Light [2013] FamCAFC 4 SS & AH [2010] FamCAFC 13 |
| Applicant: | MR ACCOLA |
| Respondent: | MS MADDIN |
| File Number: | ADC 1214 of 2016 |
| Judgment of: | Judge Brown |
| Hearing date: | 17 June 2020 |
| Date of Last Submission: | 17 June 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 18 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dickson |
| Solicitors for the Applicant: | Belchamber Legal |
| Counsel for the Respondent: | Mr Hanlon |
| Solicitors for the Respondent: | Hannay Lawyers |
| Solicitors for the Independent Children’s Lawyer | Ms Tydeman of the Legal Services Commission |
ORDERS
The child X born in 2009 be delivered up to the father at the Suburb G Police Station at 12:30pm this day, 18 June 2020.
The father make any application for costs within twenty-eight (28) days of today’s date.
The mother respond to any application for costs within a further twenty-eight (28) days of that.
Pursuant to section 69ZW of the Family Law Act, the Department for Child Protection (Families SA) are ordered to provide to the court the following documents:
(a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;
(b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;
(c)any reports commissioned by the agency in the course of investigating a notification.
Further consideration of the matter is adjourned to 26 August 2020 at 9:30am.
The application filed 15 June 2020 be dismissed.
Liberty to apply.
IT IS NOTED that publication of this judgment under the pseudonym Accola & Maddin (No.2) 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
These reasons relate to a child, X, who was born in 2009 and, particularly, whether the court should make a further order directing her mother to deliver her to her father to give effect to an order made on 10 June 2020.
X has a sister, Y, who was born in 2005. The parties to these proceedings are Y and X's parents – their mother, Ms Maddin; and their father, Mr Accola.
Pursuant to an order, incidentally, which was made by me in this court on 19 August 2016, the two children are to live with their father in Adelaide and spent time with their mother, during school holiday periods, in South East Queensland.
In the earlier judgment, which I delivered on 10 June 2020, I alluded to the background to these orders, and other than to say that I accept that the circumstances of the parties separation and what happened afterwards were emotionally difficult and continued to reverberate, it would seem, for each of them and, indeed, for the children, I do not propose to allude any further to them.
If these reasons are, ultimately, reduced to writing, which they may be, they should be read in conjunction with the reasons that were provided on 10 June 2020.
The mother, in effect, now seeks to review the orders that were made on 10 June 2020. It is her position since they were made significant new evidence has come to light, which necessitates the court reviewing its order to ensure that X is appropriately protected from coming to harm.
For his part, the father disputes the provenance of this new evidence and asserts that he had nothing to do with its commissioning and, in all those circumstances, he doubts its veracity and, from his perspective, it adds nothing further to what was the position on 10 June.
Therefore, in all the circumstances currently in place, he seeks the order which was made a short time ago to be carried out, either with the mother's acquiescence or, failing her acquiescence, through the agency of police.
In April of this year, the two children went to the Region B to spend time with their mother. They were due to be returned to the father a few weeks later. They were not returned, which led to the father bringing these proceedings, which he did expeditiously.
This, in effect, led to the orders, which I made on 10 June 2020. Both X and Y were to be delivered to the father at the Suburb G Police Station on or around 13 June 2020.
Since the father was in Adelaide at the time, obviously the two children were in South East Queensland, and the country was, and remains, in the grip of a serious pandemic approximately emergency which renders it difficult to move around the country efficiently, I granted the parties liberty to apply in case there were any logistical issues.
It is also the case that on an ex parte basis Ms Maddin had obtained a domestic violence order against the father from a court in Queensland. The father - and I alluded to this in the earlier reasons for judgment - ascribes that as being a cynical and manipulative exercise on the mother's part because, from his perspective, the parties had been separated for a significant period of time.
He had, it was asserted, never actually physically stepped foot in Queensland, and to assert that either the mother or either of the children required the protection of such an order was self-apparently fallacious.
In any event, Y was returned to the father's care at the police station via the agency of the mother's current husband. After that occurred, on the basis of the liberty to apply provisions, and also pursuant to the provision of the Family Law Act1975 (Cth) (‘the Act’) itself, Ms Maddin made an application, which she asked to be urgently returnable.
In this respect, her wish has been acceded to. In this context, she seeks that the order, so far as it affected X, be discharged and in lieu thereof, the child live with her in Queensland, until a final hearing of all the issues can take place.
The order for the discharge of the delivery up order is resisted by the father. From his perspective, he does not oppose the urgent listing of the matter, because, in effect, he wants the court to enforce its earlier order.
Although he has not formally filed a response, he seeks a further order directing X be delivered to him, and failing such a delivery, a recovery order issue directly without further reference to the mother or any further process.
It is a significant thing to make a recovery order in respect of any child. It is, in effect, an order that directs a police officer to use necessary force to find and remove a child from a parent and then deliver that child to the person directed by the court.
Clearly, such interventions have the potential to be unsettling and upsetting. It is most certainly a remedy of last resort, and, indeed, the Act itself says that the court should only make a recovery order if it is satisfied that it is in the best interests of the child to do so.
In brief, the mother alleges that it would pose a significant risk to X's welfare, if she is compelled, against her wishes, to return to her father's care. X has described to her, and it would seem a number of other professionals, the fact that she perceives her father's household as being abusive of her in a variety of ways.
The father, for his part, refutes this allegation, and asserts in response to that X is, in many ways, a troubled and vulnerable child, a fact of which he says he is well aware and he himself has hitherto taken appropriate steps in regards to dealing with her issues.
Against that background, it is his evidence that in the past he has arranged for X to see a variety of counsellors and child psychologists, including most recently a person by the name of Dr D, who consulted with X via the telephone a few weeks ago.
As I indicated in the earlier reasons for judgment, it is Mr Accola's position that the parties have a long and troublesome relationship with one another as parents, which stems from the very difficult circumstances surrounding their separation and the mother's decision that she wanted to live in Queensland, which, ultimately, led to the two children living with their father.
In those circumstances, essentially, the father asserts that the mother is a manipulative person, who is playing on X's vulnerability to achieve her own agenda, which is to secure the relocation of both children to her care in South East Queensland.
Essentially, the father and his very experienced counsel assert that the mother is wanting to achieve what lawyers call a relocation, which is an order that has implications for the ease with which a child can interact with a parent over distance, through stealth, self-help and manipulation.
Accordingly, given this brief synopsis, this is a sad and perplexing case. In essence, each party asserts that the other is either emotionally manipulating X, or has actually physically and psychologically abused the child.
In each case, if either of these allegations are true, such behaviour clearly cannot be condoned, and cannot be regarded as in the best interests of the child concerned, which must remain my paramount or most important consideration.
So, accordingly, the required determination, at this interim stage, arises against a background of quite extraordinary crisis and disputation. In deciding what is best for X, I have to make some assessment of the risk of each of the scenarios, which are put forward, by the respective parents.
In general terms, the assessment of risk in parenting cases, at the interim stage, where there can be no cross-examination of parties and findings about credit made, where expert evidence of an impartial and objective nature is often limited, the assessment of risk is one of the more difficult, if not the most difficult task for family law judges.
It becomes even more difficult in cases where the propounder of the allegation of the abuse concerned and its contradictor are locked in bitter conflict with one another, and each asserts that the other is not beyond manipulating or distorting the truth to achieve their personal ends, in acrimonious familial situations, extending over many years.
In such cases, it may become practically impossible to discern where the truth lies, particularly in the context of an interim hearing. But the court cannot ignore allegations of risk arising in the case solely on the basis of evidentiary difficulties arising.
Rather the legal authorities applicable require the court to undertake a process in which risk is assessed calmly and objectively leading to a determination, on the balance of probabilities, of the degree and intensity of the risk arising.
It cannot be a precise scientific endeavour. Mistakes can be made. Wrong assessments are possible, but the court's role is not to achieve a situation where there cannot be a scintilla of risk for any child. That would be impossible. Rather, it is to assess the quality and nature of the risk which is alleged and the likelihood that something terrible will or will not happen.
One further potential difficulty may arise in such cases. It is a common incident that one parent will co-opt an expert, such as a doctor or a counsellor or a psychologist and sometimes a police officer, to interview a child in the absence of any input from the other parent who is unable to put any mitigating material or to present himself or herself for scrutiny by the person co-opted who is, in effect, called upon to pass judgment on his or her conduct.
In general terms, there is a risk that a person who, no matter how well meaning, interviews only one parent, or has only certain aspects of a particular case, may be guilty of or fall into the error of confirmation bias.
In addition, when there are such polarised positions between parents, such scenarios inevitably place great pressures on a child's ties of loyalty to each parent. In such circumstances, questions often arise as to the overall reliability of what a child has said and, therefore, the objectively and impartiality of the expert who has been unilaterally co-opted by a parent.
Children, just as their parents do, may have agendas that they wish to pursue. In addition, they may not understand the moment of the issues that they are raising. All these features are present in the current matter. Regrettably, it is sadly not unknown for children to be manipulated even by parents who love them deeply.
At an early stage of the proceedings, in fact, when I delivered the judgment on 10 June, it was clear to me that this case had a very long way to run. It is what lawyers characterise as a relocation case.
Following an earlier consent order of the court, the children live in this state of South Australia, with their father. The mother wishes to change this arrangement and for both children to live with her in the state of Queensland.
So, at first blush two difficult legal concepts are likely to be engaged: relocation, and the High Court most significantly in the case of AMS v AIF; AIF v AMS,[1] I think it was Kirby J, said that every relocation case requires a careful and delicate analysis, and so it is.
[1] AMS v AIF; AIF v AMS (1999) FLC 92-852.
The other issue is what lawyers call the rule in Rice & Asplund.[2] Children should not be subject to an endless disputation about arrangements for their care. Final orders are meant to be just that, final. Something has to happen to justify a change in the living arrangements of the child.
[2] Rice & Asplund (1979) FLC 90-725.
Essentially, that will, I suspect, be Mr Accola's case, that the children are well settled in South Australia and it cannot be established that there is any reason to revisit the 2016 orders. On the other hand, Ms Maddin will contend that the children’s interests will be best served if they live with her in Queensland, particularly X.
Anyway, I am not here to determine those difficult issues today, but I allude to them because on 10 June I appointed an Independent Children's Lawyer for the two children. She is Ms Tydeman who is an experienced family lawyer, who works for the Legal Services Commission of South Australia.
Ms Tydeman has appeared at this more recent hearing. She has only been appointed for a matter of days, and, to a certain extent, she is in the same position as me, in that she has read the affidavit material, but is not in a position to ascertain its credibility.
However, Ms Tydeman still is under a statutory duty provided by section 68LA of the Act. She is required to look at the evidence and evaluate it, and then make submissions as to what she thinks is likely to be the outcome that will best advance the interests of the children whom she represents.
In essence, it is her position this is a troubling case. I think her submission can be boiled down that the evidence available to her militates more in favour of X returning to South Australia than otherwise. Ms Tydeman eschews the involvement of the police in forcing the recovery order.
She favours the child having urgent psychiatric treatment and support in South Australia, pending a more balanced and independent inquiry from a psychological perspective in the form of a family report in respect of what is likely to be in X and Y's best interests.
Ms Tydeman is concerned about the splitting of the siblings. However, Ms Tydeman does not decide these cases. I do. As the late President Truman said, the buck stops with me, and I have to decide the case at this contentious early and potentially provisional stage.
It is essentially a task focussing on the assessment of risk in circumstances when issues remain inchoate and controversial and the evidence in respect of such issues is both incomplete and untested. So, I have already gone through this exercise once, but out of deference to the concerns of each of the parties concerned, I will go through it again as best I can.
I concede that I may be wrong. I cannot foretell the future. No one can. But what I have to do is, coldly as I can and objectively as I can, examine the risk. What has X said to whom and in what context? What has she done in terms of what issues are raised? What is her level of insight?
As I say, it is the father's position that X is a troubled child. Rightly or wrongly, I do not know, he attributes some of her issues to the fact that she is a child of separated parents. There can be no doubt that notwithstanding the distance between South Australia and Queensland, the mother has played a very active role in the care of the two children concerned.
She interacts with them frequently via electronic means. She has, and Mr Accola also has, been fastidious in following the orders for holiday time, and from time to time, as the orders envisaged, Ms Maddin has come to South Australia to spend time with the children.
It is the father's position that X has had issues controlling her temper and self-image and has been violent to her sister. It was in that context that he took the child to see Dr D.
Dr D is X’s psychologist. Dr D has not provided an affidavit in these proceedings, but he has written a report. The report is dated 16 April 2020. It was compiled when X was in her mother's care.
It is the father's position that prior to X arriving in Queensland, unbeknownst to him the mother decided to arrange a conference between X and Dr D. Mr Accola asserts that was, in effect, to make a pre-emptive strike in her struggle to regain the children.
In terms of what X complained about to Dr D, she said that her father mistreats her various ways, including 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 his life, and exposes X to his own strong moods.
X also spoke of a recent incident where her father grabbed her and dragged her downstairs. X said that she told her father that he was hurting her, but he denied that she would be feeling hurt. X said there were red marks on her arm.
First up, Mr Accola denies the gravamen of those allegations. If true, they may fall within the definition of abuse which is contained in section 4 of the Act, which includes an assault, and if the child was dragged downstairs, that is conceivably an assault, or causing the child to suffer serious psychological harm, and it is in this context that it would appear to be the position that the mother puts her case.
Dr D reports that X reported to him that she hates her life and she is thinking 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 her.
Dr D, who was retained by the father, didn't talk to Mr Accola and say, “What's this all about?" What should he have done? Perhaps it was not appropriate for him to have done so. But it is feasible that had he done so he might have seen the case in less cut and dried terms.
Clearly, the troubled relationship between father and daughter has its issues from time to time, quite possibly with rights and wrongs from each side. Must it be the case that the relationship is severed on the basis of what Dr D opines.
If Mr Accola was an abusive father, would he have permitted the children to go and spend time with their mother? Would he have taken X to see the doctor in the first place? These are questions that I ask myself. Has X got her own agenda? Has she got other issues in her life which make her mother's house at this stage more attractive to her? Again, these are questions that occur to me at this stage.
At any event, Dr D said he recommended that X be withheld from returning to Adelaide until the matters raised in the letter be investigated. He said he would make a notification to the South Australian Department of Child Protection. That was in April. Whether there has been any such investigation even contemplated appears gravely doubtful.
The older child has returned to her father's care, it is asserted, and this, of itself, is also highly controversial. Y has asserted that the father has not been properly caring to X, but she has nonetheless elected to return to her school in South Australia where she is, apparently, a budding artist, and she has a scholarship, I think, and the school she attends has special classes for her art, but she has returned.
It seems it must be the case that X was well aware of the controversial circumstances of these proceedings because Ms Maddin has provided a chronology of what happened after the orders that I made on 10 June. She says that the hearing which took most of the afternoon, as I recall, that at about 5.21 pm X sent me a text message saying, "I'm not going back". She says that she tried to diffuse that issue. "We'll talk when I get back. I love you". A short time later there was another text message from X which said, "I will kill myself if I have to go back".
It is Ms Maddin's evidence, which has not been subject to any scrutiny, and the father other than expressing some disagreement with it isn't really in a position to challenge it, that the mother earnestly pleaded with the child that there was going to be an Independent Children's Lawyer, the decision had not been finally made about living in Queensland, that it had been deferred, and so on, and so forth. But it was Ms Maddin's evidence that X remained upset and had started to pick at her skin, a behaviour that she had done earlier.
Ms Maddin is also highly critical that notwithstanding the court's direction that the children return to South Australia, Mr Accola has terminated Dr D's retainer. From the father's perspective he asserts that he no longer has any trust in Dr D because of what he asserts is his lack of professionalism and impartiality. Firstly, in arranging a tele-consult with the child without informing him that it would be occurring, and then, secondly not engaging with him, after the consult.
In any event, the next thing of significance that happened was that a GP appointment was arranged with a Dr O, which X attended on the telephone, apparently, with Ms Maddin's husband but without reference to the father.
Although Ms Maddin was not there, it was reported to the doctor that Ms Maddin had noted concerning behaviour on X’s part, including a tendency towards self-harm; difficulty of regulating emotion; anger with verbal and sometimes physical abuse towards others; and expressions of suicidal thoughts.
In this context X was referred to a psychologist, Ms E, it being asserted that the child's behaviour had escalated when she had learned that she was to be returned to South Australia.
Ms E has prepared her own report which was written around about 12 June. In terms of history, X and her mother agreed that X had, and continues to have, difficulty regulating emotion, and is quick to anger, and at times can be aggressive.
So, one of X's issues is managing her temper, particularly in the context of being aggressive. Whether that's so or not, I am not sure, but her management, and - this is the father's position - is problematic from time to time.
In addition, X reported other problems. She is said to have a strong personality. She has difficulty making friends. She has a poor self-image and reportedly stated that she hates her body and is self-loathing. She has got some sores on her arms.
What is the aetiology of those sores is unknown to me. How big they are, other than they are described as being small, is unknown to me, and she has been picking at them. She does that when she is stressed apparently.
So, by way of background, in perhaps a more elaborate way, Ms E outlined some of the elements of X's background and personality. She is in many ways a vulnerable and challenging child. I have absolutely no doubt that each of her parents loves her very much, indeed. In this context, Ms E says that what X's complaints about her father, which she did not elaborate on in her report, were consistent with what she had told others, particularly Dr D.
Ms E administered some psychometric testing. In terms of the scores for social phobia, depression and anxiety, she fell into the subclinical category. She has some symptoms of depression and anxiety, but it was said not to meet the full criteria. Clearly, she is still a troubled child. She has said that she is thinking or has thought about suicide. Ms E says in her report assessment of self-harm and suicide risk in young people is particularly difficult.
She further opines that there is no valid tool that is tailored to the emotional, intellectual and functional capacity of children. She goes on to say that it's the leading cause of death in 5 - 17-year-olds. That may be so, but with the greatest respect to her, that is Ms E, it is, in terms of assessing risk, not a particularly helpful statistic. It's not put in a numerical form and, in any event, in purely statistical terms, so far as suicide in general, the cohort which is least liable to suicide is 15-year-old and under females, for what it's worth. It is worth absolutely nothing.
I have to assess the risk for this child. To her credit, Ms E endeavoured to do that. She asked her, "What do you mean?" by suicide and what plans she had because that is the essence of it, and, as I observed yesterday, it is impossible to get the emotional tone from a text message.
So, Ms E explored with X her understanding of what she meant by "kill herself" and what plans, if any, she had, and to that X said she didn't want to kill herself, but that it might be easier than having to go back to South Australia. X said that she didn't know how she would kill herself if she did, but she did think about it at times. X also stated that it would be upsetting for people around her if she did kill herself.
Further, Ms E said the expression of suicidal ideation may be an indication of an inability or immaturity to manage and express emotion appropriately. However, that, of itself, is a risk. So, we have, on Ms E's account, an immature child who is troubled and has difficulty expressing her emotions.
A lot of her issues, difficulty maintaining friendships, poor self-image, some previous depression and anxiety, exposure to family, conflicts and parental separation, are all factors that have nothing to do specifically with Mr Accola, but in the past, no doubt, he has had to deal with them.
In my view, issues to do with X's psychological make-up are complicated and nuanced, as is what is her wish or view as to what in the long-term will be best for her. Intertied with all those issues are the prospect of her being separated from her older sister, Y, and it seems more probable than not that the two siblings have a close and loving relationship with one another. So against that background, Ms E said that X was significantly distressed and there was a risk of possible harm if she was returned to an environment she described as stressful.
Mr Accola has grave concerns about Ms E's qualifications and impartiality. He asserts that he has reason to believe that she is an associate of the mother's husband. As I say, he has lost all confidence in Dr D and, in effect, asserts that Ms E has been manipulated in just the same way as Dr D.
He does not assert anything other than X is a difficult child to manage from time to time. In this context he asserts that if and when the child returns, he will arrange for the child to see another clinical psychologist in Adelaide whom she has seen in the past, a Ms P.
More significantly, he asserts that his experience of what Y has said to him since she has returned to his care reinforces his view that both children have been under significant psychological pressure in their mother's home to advance her agenda. He says that when Y left the police station at Suburb G with him, she was crying and said words to the effect "I just want to come home and mum told me not to talk to you".
She said she was very, very happy to see him and couldn't wait to get back to school. She said she had been very stressed by everything going on and just wanted to come home. Reportedly X was upset, too.
Mr Accola is also critical that, although an order was made for him to be able to converse with the children prior to their return to him, that that hasn't been facilitated with the regularity he had envisaged. It is his case that when he did speak to Y on one occasion, she was excited and X had said she wanted a guinea pig and wanted to continue to learn how to read a bike when she got back to Adelaide, so the import of that evidence being that Y is not as fearful for her as the mother would contend.
When it is all boiled down, the thought of a ten-year-old expressing a thought of suicide, even in the most inchoate and incomplete of terms, is horrifying, but, as was pointed out in such cases as M & S,[3] the court has to be aware that false allegations are made, facts are misinterpreted by parents who act in good faith, or who are intent on deliberately fabricating events. Things that a child says can have another explanation.
[3] M & S (2007) FLC 93-313.
In SS & AH[4] the Full Court indicated that apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or ejected.[5] It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[4] SS & AH [2010] FamCAFC 13.
[5] Ibid at [101].
In Slater & Light 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]
[6] Slater & Light [2013] FamCAFC 4 at [37].
So, I have to assess the risk of whether a catastrophic event may eventuate. I can't say that there is no risk. That would be impossible. It is the likelihood that something will occur. That X is an unhappy child cannot be doubted.
The precise aetiology of her unhappiness would appear to be multifaceted. The father has been the child's primary carer for four years. In the past, he has made the children available to spend time with their mother. It was he who arranged for the child to have psychological support.
The child, Y, has returned voluntarily and is said to be pleased to be returned. There is no evidence from DCP. In addition, there are risks of upheaval and disrupting X's life and, indeed, indirectly Y's life, by making a very significant decision on the basis of uncertain and controversial evidence.
In my view, the risk arising for X is not so great that I should not give effect to the order which I earlier made. In my view, a proportionate response to the risk is an Independent Children's Lawyer, which I have done. In due course, the preparation of a family report, and for the father, in concert with the mother, to arrange appropriate psychological support and, if necessary, psychiatric support for X.
In cases of this kind, it is not simply an issue of assessing of risk. I also have to look at the other factors that arise under section 60CC of the Act. I have spent a lot of time in respect of the risks of exposure to family violence and abuse, but I also have to consider the nature of the children's relationship with each of their parents and other significant others.
The father must be regarded as a significant person in the lives of the children, he has been their primary carer. There are paternal grandparents in Adelaide. I have to consider the effect of the change. It is a significant change. It's not usually a good thing to make a relocation decision in the context of an interim hearing.
There is also the issue, as I have alluded to, of the splitting of the siblings. In my view, these issues are more properly dealt with at the final hearing stage. Most significantly of all, I am not in a position to unpack the issues that are raised by placita (i) of section 60CC(3), that is the attitude to the child and to the responsibilities of parenthood demonstrated by each of their parents and, related to that, the capacity of each of the parents to provide for the child's emotional an intellectual needs which is placita (f).
The essential issue is this: is the father the tyrannical paterfamilias, the disciplinary martinet portrayed, or, on the other hand, is the mother the emotionally needy, manipulative and enmeshed parent who will stop at nothing to get what she wants.
At this juncture I simply do not know. Each asserts that he or she is only doing what a concerned parent would do. Clearly, the conflict between them is long-standing and significant.
For those reasons, I will in a moment ask Mr Hanlon who has told me that if I make an order that the child be returned, his client will facilitate it without the intervention of the police.
It is now a question of the mechanics of that, and I suspect that each party, certainly the father, will want to agitate an application for costs, which I don't propose on dealing with now, but I will direct that any application for costs be made within 28 days with a response to be filed within a further 28 days of that.
I will direct that the child X be delivered up to the father at 12.30pm this day, 18 June 2020. I will direct that the father make any application for costs within 28 days of today's date, with the mother to respond to such application within a further 28 days of that.
At an earlier stage I adjourned the proceedings to 26 August. I will retain that date and at that stage, perhaps Ms Tydeman will be in a position to tell me more about a family report, and perhaps I will be in a position to make informed decisions as to expediting the hearing or, indeed, whether it is appropriate to transfer the matter to the superior court.
I should also indicate - the parties know this, I do not know if their lawyers do – I am dealing with an application that Mr Accola has made in respect of a decision of the AAT which relates to child support. I told everybody that the other day, but that is fixed for hearing in October.
I am not going to make the recovery order because Mr Hanlon tells me that it is not needed, but regrettably if something goes awry, I will have to make the recovery order. So, I am just putting my cards on the table. Having made a decision, I have to stick with it. I will also make a section 69ZW order directed to the Department for Child Protection.
For all these reasons, the orders of the court will be those set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Brown.
Associate:
Date: 8 April 2021
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