Adamson & Adamson - [2018] FamCA 523

FAMILY COURT OF AUSTRALIA

ADAMSON & ADAMSON

[2018] FamCA 523

FAMILY LAW – CHILDREN – Best interests – With whom the children live – With whom the children spend time – Presumption of equal shared parental responsibility – Meaningful relationship – Unacceptable risk – Where the mother has unilaterally relocated the children – Where the mother alleges that the father has mental health issues – Where the mother alleges that the father has a gambling addiction – Where the mother says she does not have adequate support.

Family Law Act 1975 (Cth) ss. 60B, 60CA, 60CC, 61DA, 65DAA

AMS v AIF [1999] HCA 26
Attwill & Marden [2018] FCCA 1401B and B (1993) FLC 92-357
Bolitho & Cohen [2005] FamCA 458
Cales & Cales [2010] FamCAFC 237
Cowling & Cowling (1998) FLC 92-801
Goode & Goode (2006) FLC 93-286
M v M (1988) 166 CLR 69
Morgan & Miles (2007) FLC 93-343
SS v AH [2010] FamCAFC 13
Sampson & Hartnett (No 10) [2007] FamCA 1365
Sigley v Evor (2011) 44 Fam LR 439
U v U [2002] HCA 36

APPLICANT:

Mr Adamson

RESPONDENT:

Ms Adamson

FILE NUMBER:

SYC 3439 of 2018

DATE DELIVERED:

19 July 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

18 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Millar

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Ms Fraser

SOLICITOR FOR THE RESPONDENT:

Advance Family Law

Orders

Within 14 days of the date of these Orders, the mother is to cause X born … 2015, Y, born … 2017 and Z, born … 2017 (“the children”) to be returned to, and thereafter live in, an area within 10 kilometres of Suburb B NSW (“the Suburb B area”).
Subject to order 6 herein, upon the return of the children to the Suburb B area in accordance with order 1 herein, the mother be and is hereby restrained from relocating the children's residence from the Suburb B area, without the father's written consent or an order of the Court.
To facilitate the children's return to the Suburb B area pursuant to order 1 herein, the mother may elect to live with the children in the property at C Street Road, Suburb B NSW (“the Suburb B property”) presently occupied by the father, provided that she provides the father’s solicitor with 72 hours’ written notice of her intention to do so.
Upon written notice being provided by the mother of her intention to live in the Suburb B property with the children, the father shall vacate the Suburb B property within 72 hours and the mother will, thereafter, have exclusive occupation of the Suburb B property, pending further order.
In the event that the mother elects to live at the Suburb B property with the children, the father must continue to pay the mortgage, utilities and expenses relating to that property, within 28 days of each relevant payment becoming due.
The restraint imposed on the mother by order 2 herein is conditional upon:
(a)The father complying with orders 4 and 5 herein, if an election is made by the mother pursuant to order 3 herein; and
(b)The father’s mother paying the fees associated with the children attending daycare.

Parenting Orders

Upon the children being returned to the Suburb B area in accordance with order 1 herein, the children will live with the mother and spend time with the father, pending further order or the written agreement of the parties, as follows:
(a)On the weekend immediately subsequent to the children’s return to the Suburb B area from 10:00 am to 4:00 pm on Saturday and each weekend thereafter; and
(b)Each Wednesday from 3:00 pm to 6:00 pm.
For the purpose of effecting changeover of the children, in terms of order 7 herein, pending further order, the father will attend the mother’s residence at the start of his time to collect the children and return them to the mother’s residence at the end of his time. If the children are at daycare at the start of the father’s time, he is to collect them from daycare.
Neither parent shall speak critically or in a derogatory manner about the other parent or members of the other parent's family in the children's presence, or within their hearing, or permit any other person to do so.
Neither parent shall use physical means to discipline the children or permit any other person to do so.

Single Expert Report

Pursuant to Part 15.5 of the Family Law Rules 2004, Dr D be appointed as the Single Expert witness (“the Single Expert”) in these proceedings to enquire into and report upon matters relating to the welfare of the children and in preparing the report to the Court, the Single Expert be requested to consider the following matters:
(a)Whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to any abuse, neglect or family violence;
(b)The effect on the children of any family violence to which they may have been exposed;
(c)Any views expressed by the children, any factors (such as maturity and level of understanding) that may affect the weight to be recorded to those views;
(d)The relationship between the children and each other and with each of the parents and any other relevant person;
(e)The willingness and ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the children and the other parent;
(f)The likely effect of any changes in the children's circumstances, including the likely effect of the children on any separation from either of the parents or any other person with whom the children have been living;
(g)The capacity of each parent and any other person to provide for the needs of the children, including emotional and intellectual needs;
(h)The attitude to the children and the responsibilities of parenthood, demonstrated by each of the children's parents (and any other relevant person);
(i)The effect on the children of spending equal time or substantial and significant time, with each parent having regard to the parent's current and future capacity to:
(i)Implement such an arrangement; and
(ii)Communicate with each other and resolve difficulties that may arise;
(j)The mental state of both parties insofar as it relates to parenting issues;
(k)The mental health/special needs of the children; and
(l)Any other matter the Single Expert considers relevant.
For the purpose of the report, the Single Expert is instructed to interview each of the parties, the children and other relevant person/s.
The parties do all things necessary to facilitate the preparation of the report of the Single Expert, including:
(a)Attending on the Single Expert and arranging for the children and other relevant person/s to also attend; and
(b)Providing copies of all relevant documents filed on their behalf in these proceedings to the Single Expert.
Each of the parties pay one half of the cost of the Single Expert’s report.
The parties have liberty to apply on 7 days’ written notice to the Court and the other party.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Adamson & Adamson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3439 of 2018

Mr Adamson

Applicant

And

Ms Adamson

Respondent

REASONS FOR JUDGMENT

Introduction

On 26 May 2018, the mother unilaterally relocated with the children from Sydney to E Town in Queensland. The father seeks orders for the return of the children to the Suburb B area in Sydney. The parties also seek ancillary orders, including for the appointment of a Single Expert.

Background

The father was born in 1980 and is currently 38 years of age. He currently lives at C Street Road, Suburb B NSW (“the Suburb B property”).
The father is employed as a qualified professional.
The mother was born in 1987 and is currently 31 years of age. She currently lives with the children at the home of her parents in, F Street, E Town QLD. She relocated there with the children on 26 May 2018. Prior to that time, the mother and the children had lived at the Suburb B property.
The mother is a health professional and is currently on leave without pay.
The parties met in December 2012 and commenced cohabitation in May 2013. They were married in Sydney in 2015. The parties separated on 26 May 2018.
There are three children of the parties’ relationship, X born in 2015 and currently aged 3 years and twins Y and Z, born in 2017 and currently aged 13 months (“the children”).
The parties are in dispute as to whether the children should continue living with the mother in E Town, where she contends she is being financially and emotionally supported by her parents. The father contends that the mother should be compelled to return the children to live in the Suburb B area of Sydney.
It was not disputed that, in the event of an order being made for the return of the children to Sydney, the mother would accompany them.

Applications

The father seeks interim parenting orders in accordance with his Initiating Application filed on 1 June 2018 as follows:
Parental responsibility
4. The parties have equal shared parental responsibility for the children.
Orders for mother and children's return to Sydney
5. Forthwith and within 7 days of the date of these Orders, the mother is to cause the children to be returned to and thereafter live in the suburb of [Suburb B], Sydney, or a suburb within a 10 kilometre radius of the suburb of [Suburb B], Sydney ("the [Suburb B] area").
6. Upon the mother's return in accordance with Order 5 herein, the mother be and hereby is restrained from relocating the children's residence from the [Suburb B] area, without the father's written consent or an Order of the Court.
Recovery Order if mother fails to return to Sydney
…
10. Thereafter the children will live with the father and spend time with the mother as follows:
10.1. each alternate week from 4:00pm Friday to 5:00pm Sunday; and
10.2. such further and other times as may be agreed between the parties in writing.
Election to reside in the former matrimonial home
11. To facilitate the mother and children's return to live in the Suburb B area pursuant to Order 5 herein, the mother may elect to live with the children in the [Suburb B] property presently occupied by the father, provided that she gives the father 72 hours written notice of her intention to do so, such notice to be provided to the legal representative of the father.
12. Upon written notice being provided by the mother of her intention to live in the [Suburb B] property with the children, the father shall vacate the [Suburb B] property within 72 hours of receiving written notice, and the mother will thereafter have exclusive occupation of the [Suburb B] property, pending further Order.
Airport Watchlist
…
Parenting arrangements upon mother's return to Sydney
16. Provided that the mother returns to live in the [Suburb B] area with the children in accordance with Order 5 herein, the children will live with the mother and spend time with the father as follows:
17. The children spend time with the father as follows:
Until 25 January 2019
17.1. Until 25 January 2019, in respect to all of the children:
17.1.1. Each alternate weekend from Friday afternoon at 3:00pm to Monday morning at 9:00am;
17.1.2. Each Wednesday from 3:00pm to 7:00pm; and
17.1.3. Each time the mother works a 'night shift' and for the purposes of this Order, the mother will provide her roster to the father within 24 hours of receipt, to ensure that the father's time with the children during her night shifts can be arranged.
From 25 January 2019
17 .2. From 25 January 2019, in respect to all of the children:
17.2.1. Each alternate weekend from Friday afternoon at 3:00pm to Monday morning at 9:00am;
17.2.2. Each Wednesday from 3:00pm to Thursday morning at 9:00am;
17.2.3. Each time the mother works a 'night shift' and for the purposes of this Order, the mother will provide her roster to the father within 24 hours of receipt, to ensure that the father's time with the children during her night shifts can be arranged; and
17.2.4. One half of each school holiday period, as agreed between the parties and failing agreement, the first half in even numbered years and the second half in odd numbered years.
From 19 June 2020
17.3. From 19 June 2020, in respect to all of the children:
17.3.1. Each alternate week, commencing with the father, from after school Friday afternoon to the commencement of school Friday in the following week;
17.3.2. Each time the mother works a 'night shift' and for the purposes of this Order, the mother will provide her roster to the father within 24 hours of receipt, to ensure that the father's time with the children during her night shifts can be arranged; and
17.3.3. One half of each school holiday period, as agreed between the parties and failing agreement, the first half in even numbered years and the second half in odd numbered years.
Special occasions
18. That notwithstanding any Order to the contrary, the children shall spend time with the mother and father on special occasions as follows:
Christmas
18.1. With the father from 9:00am 24 December to 3:00pm 25 December in even numbered years commencing in 2018; and
18.2. With the father from 3:00pm 25 December to 6:00pm 26 December in odd numbered years commencing in 2019; and
18.3. With the mother from 9:00am 24 December to 3:00pm 25 December in odd numbered years commencing in 2019; and
18.4. With the mother from 3:00pm 25 December to 6:00pm 26 December in even numbered years commencing in 2018.
Children's Birthdays
18.5. On each of the children's birthdays, both children will spend time with the parent with whom they are not otherwise living or spending time with in accordance with these orders from after school to 7pm if it is a school/day care day and midday to 4pm if it is a weekend or holiday period.
Mother's Day/Father's Day
18.6. With the father on Father's Day if they are not otherwise in his care from 6pm on the day before Father's Day until 6pm on Father's Day.
18. 7. With the mother on Mother's Day if they are not otherwise in her care from 6pm on the day before Mother's Day until 6pm on Mother's Day.
Changeover
19. In the event the mother returns to Sydney in accordance with these Orders, to facilitate each of the parents' time as provided for in these Orders, changeover shall occur at day care and/or school if the children are at school and/or day care on the handover day, otherwise handover will occur at the former matrimonial home.
20. In the event the mother fails to return to Sydney in accordance with these Orders, handover shall occur as agreed between the parties in writing.
Single Expert Family Report
21. That pending further order and pursuant to Division 15.5.2 of the Family Law Rules that [Dr D] be appointed as the single expert witness in these proceedings to enquire into and report upon matters relating to the welfare of the children and that in preparing the report to the Court a single expert be requested to consider the following matters:
…
Non-denigration
22. Neither parent shall speak critically or in a derogatory manner about the other parent or members of the other parent's family in the children's presence, or within their hearing, or permit any other person to do so.
Restraint on Physical Discipline
23. Neither parent shall use physical means to discipline the children or permit any other person to do so.
Costs
24. The mother pay the father's costs of and incidental to these proceedings.
The mother seeks the following orders:
1. The children live with mother in [E Town] in Queensland.
2. The children shall spend time with the father at all times as agreed between the parties, and failing agreement as follows:
a) During any time that the father is in [E Town], for two consecutive days from 10:00 am until 4:00 pm each day;
b) In the event that the Father is in [E Town] for more than two days at a time, the children shall spend time with the Father in accordance with order [2]a. and the children shall have a period of 24 hours at home with the mother, before spending a further two consecutive days, between 10:00 am and 4:00 pm with the father.
3. In respect of the time the father spends with the children he will provide the mother seven (7) days' written notice of his intention to travel to [E Town].
4. That the Mother and Father will keep the other parent informed at all times of their residential address and landline contact telephone number;
5. The mother will inform the father of the names and addresses of any treating medical or other health practitioners who treat the children and this orders authorizes those practitioners to provide the Father with information that they are lawfully able to provide about the children.
6. The Mother will inform the father as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children.
Changeovers for time
7. When the children are spending time with the Father, the father will collect the children from and return the children to the maternal grandparent's residence at [F Street, E Town].
Communication
8. The father will skype (or other such electronic medium), the children as agreed between the parties failing agreement between the hours of 4:00 pm and 4:30 pm, and in relation to such communication the mother shall:
a) Ensure that the children are available to receive the Skype call;
b) Arrange for the children to Skype the Father on the following night if, for any unforeseen circumstance, the children miss the telephone call from that parent;
c) Ensure that the children are able to interact with the device, during the conversation.
Children's Passport Applications and Mother's Travel to New Zealand
9. The parties will do all acts and sign all documents to secure passports for the children, [Y] and [Z].
10. The mother is hereby permitted to travel to New Zealand with the children in August 2018 for the purposes of attending a family event and holiday.
11. The mother will provide her itinerary to the father, within 14 days of departure, and the mother will;
a) Also provide her main residential contact address when staying in New Zealand, and
b) A contact telephone number and skype connection whereby he can continue to speak to the children pursuant to Orders 11 a) - c) above.
c) The mother will inform the father of her return to Australia within 12 hours of landing.
Parenting Program and Father's Treatment
12. Within seven days of the date of these orders, the parties shall take all steps to enrol in and subsequently complete a Positive Parenting Programme and will provide to the other party's solicitor evidence of their enrolment, and a copy of the completion certificate.
13. That the father continue to attend upon [Dr H], psychologist and [Dr J], Psychiatrist and follow any recommendation of [Dr H] or [Dr J].
Family Report
14. That pursuant to Section 62G of the Family Law Act a family report writer be appointed to prepare a family report in relation to such the following shall occur:
a) The Mother shall within seven (7) days of the date of this order provide the Father's solicitors a panel of three report writers and an estimate of their fees.
b) The Father to choose one of the panel and provide the Family Report Writer's name to the Mother's solicitors within seven (7) days of his solicitors receiving the panel.
i. In the event the mother does not respond within seven (7) days, the father shall choose the Family Report writer.
c) The parties are to be responsible for providing the family report writer a copy of the following documents at least seven (7) days prior to their scheduled interview:
…
c) The parties to share the cost of the Family Report Writer equally.
…
Appointment of an Independent Children's Lawyer
21. Pursuant to s 68L of the Family Law Act 1975 the children be independently represented and it is requested that the New South Wales Legal Aid Commission arrange such representation and for the purposes of such representation.
…
Liberty to Apply
23. The parties have liberty to apply on the giving of seven (7) days' notice in writing to the other party in relation to these orders.

Evidence

The father relies upon the following documents:
a)His Affidavit sworn on 30 May 2018 and filed on 1 June 2018;
b)Affidavit of Dr J sworn and filed on 4 June 2018;
c)Affidavit of Dr H sworn and filed on 14 June 2018; and
d)Notice of Child Abuse, Family Violence or Risk of Family Violence filed on 1 June 2018.
The mother relies upon the following documents:
a)Her Affidavit sworn and filed on 15 June 2018; and
b)Notice of Child Abuse, Family Violence or Risk of Family Violence filed on 15 June 2018.

Approach

This Court has, on a number of occasions, acknowledged the difficulties of determining cases concerning the potential relocation of a parent and a child in interim proceedings.
In Morgan & Miles (2007) FLC 93-343, Boland J said at [84]:
The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far-reaching consequences for the child, required the full investigation which can only occur at a final hearing or, now, by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.
In the context of this urgent interim application, I am prepared to make orders concerning the place of residence of the mother and the children only on a short-term basis. In particular, before longer term arrangements are considered, the Court will require more comprehensive expert evidence. The Court has made orders for the preparation of a Single Expert report.
The decision of the Full Court in Goode & Goode (2006) FLC 93-286 usefully sets out the approach which should be taken in considering an application for relocation orders on an interim basis. At paragraphs 81 to 82, under the subheading "How should interim proceedings be conducted?", the Full Court said:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In Cowling & Cowling (1998) FLC 92-801, the Full Court said at [18]:
The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.

Competing proposals of the parties

I have previously set out the orders sought by the parties. Essentially, however, the competing proposals of the parties are as follows.
The father seeks orders for:
a)The mother to return to live in the Suburb B area of Sydney with the children, within seven days;
b)The children to live with the mother and spend time with the father:
i)each alternate weekend from Friday at 3:00 pm to Monday at 9:00 am; and
ii)each Wednesday from 3:00 pm to 7:00 pm; and
c)That the children be placed on the Airport Watch List.
In comparison, the mother seeks orders for:
a)Her to remain living with the children in E Town on an interim basis, pending receipt of a report from a Single Expert;
b)The children to spend time with the father in E Town;
c)The appointment of an Independent Children’s Lawyer; and
d)Her and the children to be permitted to travel to New Zealand in August 2018.

Agreed or uncontested facts

In October 2015, the parties moved to live at the Suburb B property.
In January 2017, X commenced attending daycare at Suburb K.
In February 2018, Y and Z commenced attending the same daycare as X at Suburb K.
On 5 March 2018, the father commenced consulting Dr H, Psychologist.
On 21 May 2018, the parties had a discussion about the mother visiting her parents in E Town. The father contends that he objected to the children travelling with the mother.
On 23 May 2018, the father underwent an initial assessment with Dr J, Psychiatrist.
On 24 May 2018, there was a further discussion between the parties regarding the maternal grandparents travelling to Sydney and subsequently, the mother and the children travelling with them to E Town. The father contends that he again objected to the mother taking the children with her.
On 26 May 2018, the mother left the Suburb B property with the children and removed a number of items from the home.
On 1 June 2018, the father filed an Initiating Application to commence these proceedings.
It is uncontested that the children have lived in Sydney since they were born.

The law - concepts and principles

Part VII of the Family Law Act (1975) “the Act” sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B sets out the objects and principles of Part VII. These are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)) and to protect them from family violence (s 43(1)(ca)).

Presumption of equal shared parental responsibility

Section 61DA of the Act relevantly provides:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a. abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
b. family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In this matter, both parties have filed Notices of Risk pursuant to Rule 2.04D of the Family Law Rules 2004. It goes without saying that issues relating to the safety and welfare of children are of utmost concern to the community and the Court. In circumstances where, in these interim proceedings, it is not possible to make findings of fact in respect to the contentions of the parties that are relevant to potential findings of risk, it is not appropriate for the presumption of equal shared parental responsibility to apply.
In those circumstances, the pathway set out in s 65DAA of the Act for the determination as to whether the children should spend equal or substantial and significant time with a parent does not apply.
The Court is therefore at large in making orders that it considers to be in the best interests of the children in the context of the issues raised in these interim proceedings.

Paramount consideration in making parenting orders

Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to the child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65DAA.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the child’s best interests. The primary considerations are set out in s 60CC(2) of the Act, as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).

Meaningful relationship

In this matter, both parties acknowledge that it is in the children’s best interests to have a meaningful relationship with both of their parents, in terms of s 60CC(2)(a) of the Act. I accept that to be the case. In Sigley v Evor (2011) 44 Fam LR 439, the Full Court confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.
It was conceded by the mother that her remaining in E Town with the children has the potential to adversely impact upon the children maintaining a meaningful relationship with the father. That fact, however, it was contended, needed to be balanced against other relevant issues, including the fact that the father has mental health challenges and that neither party were coping or functioning well when the mother and children were living in Sydney. I will discuss those contentions in greater detail below.

Unacceptable risk

Determining whether a child would be at an unacceptable risk with a parent involves a balancing exercise. In B and B (1993) FLC 92-357 at 79,778, the Full Court described the task of determining whether a child would be at an unacceptable risk in spending time with a parent as being to “achieve a balance” between the risk of detriment to the child from abuse and “the possibility of benefit to the child from parental access”. Specifically, the Full Court said it is necessary to determine whether “that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access”.
In M v M (1988) 166 CLR 69, the High Court said at paragraph 78:
To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of [harm].
Writing extra-judicially in “Unacceptable Risk – A return to basics” (2006) (20 AJFL 249 pages 249-295), the Honourable John Fogarty AM, a former judge of this Court, said:
…unacceptable risk in the High Court’s formulation [in M v M] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.
Where an unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.
In the article referred to at paragraph 43 above, John Fogarty AM wrote:
The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’...
In interim proceedings, it is difficult to identify unacceptable risk and determine whether reasonable safeguards could mitigate against that risk. In Cowling v Cowling [1998] FamCA 19, at paragraph 18, the Full Court said, in respect to interim proceedings:
Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
Despite the limitations on the Court’s ability to make findings in respect to controversial facts, the Court is not relieved of its obligation to consider risk. In that respect, in SS v AH [2010] FamCAFC 13 at [100] the majority of the Full Court (Boland and Thackray JJ) said:
…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 rejected. 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.
It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
In this matter, the mother contends that the following matters will cause harm to the children, if she is compelled to return them to live in Sydney:
a)The mother, as the children’s primary carer, will suffer psychological, emotional and financial difficulties;
b)The mother has no family support in Sydney to assist with the care of the children; and
c)The father suffers from depression, anxiety and a gambling addiction that affects his parenting capacity and also negatively impacts upon the mother.
I will deal with each of these contentions below.

Additional considerations

Section 60CC(3) of the Act, sets out additional considerations for determining what is in a child’s best interests. Those considerations can conveniently be grouped under the following topics:
a)Issues relating to the children – their views, level of maturity, culture and relationships;
b)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility;
c)Issues of family violence;
d)Effect of change;
e)Practical difficulty of implementation of orders;
f)Avoiding further proceedings; and
g)Other relevant matters.

Issues relating to the child - their views, level of maturity, culture and relationships

Any views expressed by the child

Section 60CC(3)(a) of the Act requires the Court to have regard to any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views.
I agree with the contention of Counsel for the father that, in light of the children’s young ages, this consideration is not relevant.

The nature of the relationship of the child with each of the child’s parents and other persons

Section 60CC(3)(b) of the Act requires the Court to consider the nature of the relationship of the children with each of the children’s parents and other persons, including any grandparent or other relative of the children.
I accept that, until their separation in May 2018, the children lived with both parties and both parties were actively involved in the children’s day-to-day care and upbringing.
I also accept that the children have a close and loving relationship with both parties.
It did not appear to be disputed that the children also have a close relationship with both their paternal and maternal grandparents.

The maturity, sex, lifestyle and background of the child and either of the child’s parents

Section 60CC(3)(g) of the Act requires the Court to consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children’s parents and any other characteristics of the children that the Court thinks relevant.
Father contends that:
[The children] are each in crucial development phases. They require routine, stability and consistency. The father is concerned that the attachment between him and the children will be disrupted due to the mother’s unilateral decision [in relocating to [E Town]] and seeks that the children be immediately returned to Sydney.
I have earlier referred to the young ages of the children. While, at this stage of the proceedings there is no expert evidence regarding developmental considerations, I acknowledge and agree with the submissions of Counsel for the father that, in order for young children to bond with each of their parents, it is important that they have regular time with them.

The culture of the child if the child is Aboriginal or a Torres Strait Islander

Section 60CC(3)(h) of the Act requires the Court to consider issues pertaining to the culture of the children if the children are Aboriginal or a Torres Strait Islander.

This consideration is not relevant.

Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility

Long term decision making, time and communication

Section 60CC(3)(c) of the Act requires the Court to consider the extent to which each of the parties has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the children, to spend time with the children, and to communicate with the children.
Until the parties separated in May 2018, both parties spent regular time with the children, communicated with the children and participated in making decisions about major, long-term issues in relation to the children.
The mother acknowledges that her unilateral decision to relocate with the children to E Town was a decision concerning a major long-term issue impacting upon the children and that she failed to consult the father in making that decision.

The parent’s obligations to maintain the child

Section 60CC(3)(ca) of the Act requires the Court to consider the extent to which each of the parties has fulfilled, or failed to fulfil, their obligations to maintain the children.
As the parties have only recently separated, the Court was not informed as to whether there are any issues in respect to the payment of child support to sustain the children.
As part of his application, the father contends that, in the event of the Court making orders for the children to be returned to Sydney, he would vacate the Suburb B property and live with his mother. This would facilitate the mother and the children living at the Suburb B property. The father states that he would continue to pay the mortgage, utilities and expenses relating to the Suburb B property, although he would expect that, upon returning to her employment, the mother would make a contribution towards expenses in the sum of $500 per week. The father contends that this was the financial arrangement that the parties had in place during their marriage. However, the mother disputes that assertion and contends that she made contributions when she could. In circumstances where the mother has not, as at the date of hearing, had the opportunity to apply for child support or spousal maintenance, it would be inappropriate for an order to be made to impose this as an additional financial burden upon her.
The mother contends that the father would have difficulty in maintaining the Suburb B property and meeting expenses, as a result of his gambling addiction. The mother contends that the father has, in the past, borrowed funds from his parents, purportedly on the basis of supporting the mother and the children, but those funds have been diverted into gambling activities.
In these interim proceedings, I am not in a position to determine the extent of the father’s asserted gambling addiction. However, the orders that I make for the mother to return the children to live in Sydney will be dependent upon the father meeting all costs associated with accommodation for the mother and the children.
The father, through his Counsel, advised the Court that the paternal grandmother would continue to meet the daycare fees of the children. The Court’s orders will be expressed to be conditional on that occurring.

The capacity of each of the child's parents

Section 60CC(3)(f) of the Act requires the Court to consider the capacity of each of the parties, and any other person, to provide for the needs of the children, including their emotional and intellectual needs.
The father contends that the mother’s unilateral decision to remove the children to E Town demonstrates a lack of insight and appropriate parenting capacity on her part. Otherwise, the father does not challenge the mother’s capacity to care for the children. This is consistent with the orders he seeks for the children to continue living with the mother.
The mother, on the other hand, contends that the father’s parenting capacity has been adversely affected by mental health issues.
In her report dated 30 May 2018, Dr H relevantly, refers to the following matters:
a)The father consulted her for six sessions between 19 February 2018 and 21 May 2018; and
b)The father presented with low mood (low motivation, loss of interest, withdraw from social activities) and anxiety (racing thoughts, butterflies in the stomach, agitation, difficulty concentrating and staying on task), which were in the context of:
i)family stress;
ii)financial/mortgage stress; and
iii)workplace stress.
Dr H provided the following diagnosis and prognosis:
[The father] initially met criterion for a Major Depressive Episode. The combination of psychological treatment and pharmacological intervention led to an improvement in both his anxiety and mood.
In terms of the parties’ marital relationship, Dr H commented:
I had limited awareness of [the father’s] marital relationship, beyond the strain associated with having two very young twins combined with [the parties’] limited support network (which led to a limited capacity for them to have quality time together and a lack of intimacy). [The father] did acknowledge more arguments since the twins were born and having sometimes felt unfairly blamed.
On 9 May 2018, [the father] attended the session with [the mother], after she discovered that he had been gambling a substantial amount of money. During this session there was understandable and obvious acrimony in response to the disclosure of his gambling. [The father] presented as withdrawn and remorseful. Both parties were emotional and their communication was poor (with a pattern of criticism and emotional withdrawal).
In his report dated 31 May 2018, Dr J relevantly stated:
I first assessed [the father] on 23 May 2018. At my first appointment [the father] stated that two weeks prior [the mother] confronted him about his gambling behaviour. He disclosed to her that over the last seven months he estimated that he has lost approximately $25,000 in lottery purchases. [The father] disclosed that he had a three year history of purchasing Lotto tickets. He explained that he generally spends proximally $250 a week on Lotto tickets. Over the last seven months his purchases have increased. In April of this year, he won $20,000 on the Lotto. He lost this money within a week. He subsequently then asked his mother for a loan of $20,000 which he then subsequently lost. The context of [the mother] discovering his gambling behaviours she has subsequently separated from him.
In the context of the breakdown of his marriage, Dr J noted:
[The father] reported a significant deterioration in his mental health. He stated that his anxiety has substantially increased. He reported his mood as “sad”. His sleep pattern was impaired with initial and in demented insomnia. He described lying awake at night ruminating about his problems. He stated specifically “I just don’t want to lose my kids”. His appetite was diminished. His self-care had declined.
In this matter, it is not possible for me to reach a conclusion as to the extent of mental health challenges faced by the father. I note, however, with some concern, the reference to the father having a disturbed sleep pattern and Dr J noting that the father’s self-care had declined. I am concerned that this could also manifest itself in the care of the children. This is clearly a relevant matter to consider in terms of determining the amount of time that the children should spend with him, including whether they spend overnight time with him.
Counsel for the mother contended that a highly relevant fact in the current proceedings is that, in the absence of the family support that the mother can now access in E Town, the parties were not coping well in Sydney. The report of Dr J lends some support to that contention, where he says:
[The father] stated that he initially had a loving and supportive relationship to [the mother]. He stated that problems emerged in the context of rearing children. He stated that the twins have been particularly stressful upon the marriage. Sleep deprivation, work pressures and increasing financial responsibilities has caused him significant anxiety. He stated that [the mother] has been also under strain in her role looking after three children. [The mother] works [as a health professional]. There have been increasing arguments and bickering within the marriage, eroding stability they had established in the early stages of their marriage.
Dr J’ report gives some context to the mother’s decision to relocate with the children to E Town and is consistent with the mother’s contention that she did so due to the difficulties that she was experiencing in Sydney.
While the father contends that the mother’s unilateral decision to relocate reflects poorly on her parenting capacity, there has been no contention that the mother lacks the capacity to properly care for the children on a day-to-day basis.
As I have noted, it is not possible in these interim proceedings, to make a determination in respect to the father’s mental health and the extent to which that may impact upon his parenting capacity. However, in taking a cautious approach in these interim proceedings, I must have regard to those concerns in considering how much time the children should spend with him. In light of the concerns regarding the father’s mental health, I will not make an order for the children to spend overnight time with the father.

Attitude and parental responsibility

Section 60CC(3)(i) of the Act requires the Court to consider the attitude to the children and parental responsibilities of each of the parties.
The mother contends that the father’s expenditure on gambling is irresponsible and has impacted upon the family’s financial wellbeing and the ability of the parties to care for the children. That is a reasonable inference to draw.
The father contends that the mother’s conduct in unilaterally relocating the children to E Town, in circumstances where he was attempting to negotiate parenting arrangements, was irresponsible. I also accept that to be the case.

Issues of family violence

Any family violence involving a child or a member of the child’s family

Section 60CC(3)(j) of the Act requires the Court to consider any family violence involving the children or a member of their family.
The father contends that in November 2017, the mother grabbed the father forcibly around his neck and blocked his airway. The father further contends that in January 2018, the mother slapped him across his face. The father further contends that the mother slapped him across his face on 26 April 2018.
The mother admits to once slapping the father, but denies all other allegations that she has engaged in acts of violence towards him. In these interim proceedings, I am unable to resolve that factual controversy.

Whether any family violence order has or continues to apply

Section 60CC(3)(k) of the Act requires the Court to consider any family violence order that applies or has applied involving the children or a member of their family and if applicable, taking into account a number of stated matters.
This is not a relevant consideration.

Effect of change

Section 60CC(3)(d) of the Act requires the Court to consider the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parties, any other child or other person (including any grandparent or other relative) with whom the children have been living.
The father contends that the mother’s actions in unilaterally relocating the children to E Town has resulted in a significant change for the children that has displaced them from the familiar surroundings of the Suburb B property, where X had lived for most of her life and Y and Z had always lived. The father further contends that the mother’s actions have disrupted the children’s routine, including attending their daycare and spending regular time with the father and members of the paternal family. The father therefore, submits that it is important for the Court to make orders for the immediate return of the children to Sydney and that it would be inappropriate for the matter to be unresolved until a final hearing occurs.
The mother, on the other hand, contends that requiring her to return the children to Sydney would disrupt their current routine where they now have additional financial and emotional support from the maternal grandparents.
As I will discuss, while the Act requires the focus of these proceedings to be on the best interests of the children, authority suggests that a relevant factor to also consider is that a parent should not make a unilateral decision to significantly change the children’s circumstances in a situation where there is a dispute between the parties as to what parenting arrangements are in the long term best interests of the children.

Practical difficulty of implementation

Section 60CC(3)(e) of the Act requires the Court to consider the practical difficulty and expense of a children spending time with and communicating with their parents and whether that will substantially affect the children’s right to maintain personal relations and direct contact with the parties on a regular basis.
The father contends that the Court declining to make the orders he seeks would create significant practical difficulties in terms of the children spending time with him. In particular, the father has limited ability to travel to E Town due to his work commitments. The father also notes that, in the event of him travelling to spend time with the children in E Town, it would be necessary for him to stay in commercial accommodation without access to various items that are necessary to care for young children including, for example, nappies, a change table and two cots for Y and Z.
The mother acknowledges that the orders she seeks, which would have the children spending time with the father on those occasions when he is able to travel to E Town, would create practical difficulties in terms of expense and the amount of time that the children are able to spend with him.

Avoiding further proceedings

Section 60CC(3)(l) of the Act requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
These are interim proceedings and it is important that parenting arrangements, including the prospect of the mother relocating, are further examined in light of expert evidence.

Other relevant matters

Section 60CC(3)(m) of the Act requires the Court to consider any other facts or circumstances the Court considers relevant.
While the orders sought by the father seek the return of the children from E Town to Sydney, the reality is that the mother, as the children’s primary carer, will be compelled to return with them. It is a serious matter for the Court to make an order that effectively restrains a person’s freedom of movement. In that respect, I have had regard to the decisions of the Full Court in Sampson & Hartnett (No 10) [2007] FamCA 1365 and Cales & Cales [2010] FamCAFC 237.
In that context, in U v U [2002] HCA 36 at [142], Kirby J observed:
The burden of such injustices will ordinarily fall, as here, on the wife. It will be she, not the husband, who will usually be confined, in effect, in her personal movements, emotional environment, employment opportunities and chances of remarriage, repartnering and reparenting. Effectively, as here, it is she who will be controlled by court orders that require her to live, and make the most of her life, in physical proximity to the husband's whereabouts. In this way, inconvenience to the husband is minimised. But the effect on the wife may be profound.
In terms of the potential impact on the children, in AMS v AIF [1999] HCA 26 at [145], Kirby J further observed that:
One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
The Full Court in Bolitho & Cohen [2005] FamCA 458 confirmed that the proper approach to be adopted in relocation cases, as held by the High Court in U v U, is one involving the:
…weighing of competing proposals, having regard to relevant [s 60CC] factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
In summary, it may well be that, at final hearing, the mother has a compelling case for her to be permitted to relocate with the children to E Town. I am, however, required to make a decision in the context of these interim proceedings. In that context, I respectfully agree with and adopt the following comments by Brown J in Attwill & Marden [2018] FCCA 1401 at paragraphs 90 to 95:
Two of the principles underpinning Part VII of the Act [s 60B(2)] encourage parents to share duties and responsibilities for their children and to agree about future parenting arrangements for them.
For reasons arising from these principles, amongst other factors, courts applying Part VII are discouraging of parents, who take unilateral actions in respect of arrangements for their children, except in circumstances of significant emergency.
This is particularly so in cases of relocation, which invariably have implications for both the quality and quantity of relationship the parent left behind can have with the children affected by the other parent’s move.
The High Court has indicated that cases involving relocation require delicate and careful analysis of all the pros and cons, in respect of the move, from the individual perspectives of all concerned, including the children. For the reasons outlined already, such a degree of analysis is not possible at the interim stage.
In Morgan & Miles, which was a case which arose after the shared parental responsibility amendments were implemented, 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 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 and S remain apt and relevant to determination of these cases.”
The comments, of Warnick J referred to, were as follows:
“In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.”

Evaluation of section 60CC considerations

I accept that in relocating with the children to E Town, the mother was motivated by a desire to obtain the financial, emotional and physical support of her family. I further accept that that decision was made in circumstances where the parties were facing difficulties associated with caring for three young children, including their one-year-old twin sons.
However, that decision was made in circumstances where on 22 May 2018, the mother had been approached by the father and the paternal grandfather to discuss a parenting plan for the children. At paragraph 11 of her Affidavit, the mother notes her concerns regarding the manner in which she was approached to discuss such a parenting plan and describes feeling “intimidated and harassed by their presence”. Nonetheless, it was not an appropriate response of the mother to unilaterally decide to relocate the children to E Town in those circumstances.
While the mother benefits from the additional assistance that she is able to access in E Town, her remaining there will adversely impact upon the children having a meaningful relationship with the father.
In requiring the mother to return the children to Sydney, I am conscious that there is a potential for the mother to suffer financial hardship with consequent impact upon the children. I will, therefore, make orders that the obligation for the mother to remain in Sydney is conditional upon the father meeting all expenses in respect to accommodation for the mother and children and the paternal grandmother meeting all expenses in respect to the children’s childcare expenses.
As a result of the children’s young ages and the concerns that I have outlined above in respect to the father’s mental health, it is appropriate, at this stage of the proceedings, to limit the amount of time that the children spend with the father and, specifically, to ensure that that time, at this stage, does not include overnight time. However, I accept the contention of Counsel for the father that the children should spend regular time with him. Accordingly, I propose to make orders for the children to spend time with the father each Saturday and Wednesday. I recognise that this is not a desirable long term arrangement in that the mother will not have a full weekend with the children and the father will not have overnight time with the children. However, in circumstances where these are interim orders, pending receipt of a Single Expert report, I am satisfied that a conservative approach is appropriate.
I therefore propose making orders for the mother to return the children to Sydney. Those orders will be subject to the conditions to which I have referred. The children will live with the mother in the Suburb B area and spend time with the father during the day on each Saturday and each Wednesday evening.
The father sought that the Court make a recovery order, to be issued upon the mother’s potential non-compliance with the order for her to return the children to Sydney. I do not consider such an order to be necessary or appropriate in the context of these interim proceedings. Further, I was not addressed in respect to the application by the father for orders placing the children on the Airport Watch List, nor was I addressed by the mother in respect to her application to be permitted to travel overseas with the children during August 2018. In the circumstances, I do not propose making those orders.
I have noted that the mother agrees to the appointment of Dr D as a Single Expert. I will make orders to that effect. I have not been addressed as to whether the father should be compelled to attend a parenting course or to receive ongoing therapy in respect to his mental health issues. Accordingly, I will not make those orders, as sought by the mother.
Given the young ages of the children, I am not satisfied that it is appropriate for the court to appoint an Independent Children’s Lawyer. That matter can be reviewed after receipt of the Single Expert’s report.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 19 July 2018.

Associate:

Date: 19 July 2018