ANDALIS & ANDALIS

[2021] FCCA 207

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANDALIS & ANDALIS [2021] FCCA 207

Catchwords:
FAMILY LAW – Parenting – Interim application by the father for orders that children aged 13, 12, 10 and 4 return to live in City B – Mother proposing that the children continue to live with her on the Region C – family violence and parenting capacity issues alleged by the mother - father raising a concern about the children’s relationship with him being under threat if the children remained living eight hours from City B – order made for the children to return to City B and to live with the mother and spend time with the father if the mother returns and to live with the father and spend time with the mother if she does not return.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2), 60CC(3), 65DAA

Cases cited:

Goode & Goode [2006] FamCA 1346

Applicant: MR ANDALIS

Respondent: MS ANDALIS

File Number: NCC 3980 of 2020

Judgment of: Judge Terry

Hearing date: 25 January 2021

Date of Last Submission: 25 January 2021

Delivered at: Newcastle

Delivered on: 29 January 2021

REPRESENTATION

Solicitors for the Applicant: Delaney Roberts Family Lawyers

Counsel for the Respondent: Mr Battley

Solicitors for the Respondent: Dillon Smith Lawyers

ORDERS

1. The parties shall have equal shared parental responsibility for the children W born in 2007, X born in 2007, Y born in 2010 and Z born in 2016 (“the children”).

2. Within 7 days of the date of these orders the mother shall cause the residence of the children to be relocated back to the City B area.

3. If the mother returns to City B then the children shall live with the mother and spend time with the father as agreed between the mother and the father but failing agreement as follows:

   (a)Each alternate weekend from 3.00pm or the conclusion of school on Thursday until 9.00am or the commencement of school on Monday;

   (b)During the school holiday periods at the conclusion of Terms 1, 2 and 3 from 3:00pm or the conclusion of school on the last day that the children are required to attend school until 3:00pm on the second Saturday of the school holiday period.

   (c)During the school holiday period at the conclusion of Term 4, in odd numbered years commencing in 2021 from 3.00pm on the first day of the school holidays until 3:00pm on 7 January.;

   (d)During the school holiday period at the conclusion of Term 4, in even numbered years commencing in 2022 from 3:00pm on 7 January until 9am or the commencement of school on the first day of the school term.

   (e)For the purpose of facilitating Orders 3(a) to (d) the parents shall meet at City B Park at the commencement and conclusion of time.

4. If the mother does not return to the City B then the children shall live with the father and spend time and communicate with the mother as agreed between the mother and the father but failing agreement as follows:

   (a)On weekends when there is a public holiday or one weekend per month, in Sydney.

   (b)For one half of all NSW school holiday periods in a week about arrangement.

   (c)By telephone or Facetime each week.

5. Pursuant to section 68B of the Family Law Act the father is hereby restrained from:

   (a)Consuming alcohol during any time that the children are in his care pursuant to these Orders.

   (b)Operating any firearm whilst ever the children are in the care of the father.

6. The father shall continue to be bound by the undertaking that is presently filed with the court that he not recover his firearms from NSW Police.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The matter is adjourned to 9.30am on 11 March 2021 for further consideration.

2. Each of the parties and legal representatives have liberty to attend by telephone on 11 March 2021 by dialling in using the following details:

   (a)Phone:          ... Australia, Sydney (Toll)

   (b)Conference ID:  ...

3. If the court has muted participants, when the matter is called each party and legal representative will need to press *6 to unmute themselves.

IT IS NOTED that publication of this judgment under the pseudonym Andalis & Andalis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3980 of 2020

MR ANDALIS

Applicant

And

MS ANDALIS

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This matter involves parenting proceedings for W aged 13, X aged 12, Y aged 10 and Z who is four and will be five this year.

3. The father filed an application on 29 October 2020 following the mother’s relocation from City B with the children.

4. At the interim hearing on 25 January 2021, he sought orders that the children return to the City B area, that the parties have equal shared parental responsibility and that the children live with the mother and spend time with him on alternate weekends from Thursday to Monday and for half of the school holidays.

5. He sought in the alternative, if the mother didn’t return, a recovery order and that the children live with him and spend time with the mother as determined by the Court.

6. The mother sought orders for equal shared parental responsibility, that the children remain living with her and that she be permitted to remain in Town D. She proposed that the father spend time with the children in Sydney during school terms, once a month or when there was a public holiday, at the home of the paternal family, and for half of the holidays by arrangement.

7. The mother proposed that W and X, the eldest two children, not be forced to spend time with the father against their wishes. She also proposed that the father undergo alcohol counselling and that he not use alcohol or expose the children to loud arguing or family violence.

8. In relation to both parties their primary positions are the ones I have to concentrate on and they are, in the mother’s case, that she remain where she is and in the father’s case, that the children live in City B, but helpfully for the Court, both parties sought alternative orders if the court made an order contrary to their position.

9. The father proposed that if the Court didn’t order the mother’s return, the children live with the mother and spend time with him on alternate weekends from Friday to Sunday and for half of the holidays with changeovers at Town E McDonalds.

10. The alternative orders sought by the mother were that the children live with her and spend time with the father on alternate weekends, from Friday to Monday and for half of the school holidays. She sought similar restraints. This proposal did not expressly state where the mother would live, but alternate weekends from Friday to Monday could only occur if the mother was living in the same locality as the father.

Background

1. The father is a public servant at Employer F; he is 44. The mother is 41, and she is a public servant. I am a little confused about where she was working. The father said she had been working at Employer G, however her material suggested she had been working at the same employer as the father. I cannot resolve that.

2. The parties commenced a relationship in 2003, married in 2005 and separated on 28 August 2020 when the mother left the former matrimonial home with the children.

3. After a brief stay in City B the mother travelled to Town D where her brother lives and she resided there since that time.

4. In October 2020, after making some unsuccessful attempts to resolve the matter without court intervention, the father filed a court application seeking an order that the mother return the children to the City B area.

5. The matter was given a first return date of 9 December 2020. The mother filed a response and an affidavit in which she made alarming allegations about the father and his access to firearms.

6. The school holidays had almost arrived and I decided, before finally determining the matter on an interim basis, to order that the parties and the children take part in a child inclusive child dispute conference. That took place in Sydney on the earliest available date, which was 20 January 2021. I also ordered that the children spend two periods of time with the father over the Christmas school holidays, five days in December and seven days in January.  The father was able to take the children to City B and he did so, as I understand it, during the second visit.

7. An order was made restraining the father from recovering his guns from the police, who then had them, and from consuming alcohol while the children were with him.

8. The girls spent time with the father in the accordance with these orders. On both occasions W resisted changing over to the father and didn’t participate in the time.

9. The child inclusive conference took place on 20 January 2021 and I have the memorandum before me. Both parents also filed additional affidavits, and the interim hearing took place on 25 January 2021. It took place late in the afternoon due to pressure of work in this Court. It is almost impossible to find places to put interim hearings and by the end of the interim hearing, I was simply not in a position to deliver a decision that afternoon.

10. However somewhat unusually, because the return to school was imminent, I indicated to the parties what I intended to do. I indicated that I could not be satisfied, on the material, that the children would be at an unacceptable risk of harm if they lived in City B and I indicated that I considered there would be a risk to their relationship with the father if they remained living with the mother in Town D and I said that I would deliver the reasons shortly thereafter, which I am doing today. It is the earliest opportunity I have had to do that, given the intervention of the public holiday and a busy list that I have had to deal with over the last few days.

11. In Goode & Goode [2006] FamCA 1346, the Full Court said that the Court is often assisted, after considering the party’s proposals, by considering the disputed and undisputed facts in the matter, and in some judgments I set out a list of those.

12. I am not going to do that in this particular case because almost everything in this matter that is in dispute, except that the mother unilaterally left the home in August 2020. What I am going to do is commence by dealing with the matters in ss.60CC (2) and (3) of the Family Law Act 1975, (Cth), which are the matters which assist the Court in determining the children’s best interests.

13. As the Full Court said in Goode & Goode, it is often impossible for the Court – at an interim stage – to make findings about the ss.60CC(2) and (3) considerations so some of what I am about to say will also highlight the many disputes between the parties.

Primary Considerations

1. The first primary consideration is the benefit to the children of having a meaningful relationship with both of their parents.

2. The mother has moved to Town D, which is about eight hours from City B. Alternate weekend time in those circumstances, between the children and the parent the children do not live with, is going to be impossible. Time will still be able to occur and distance doesn’t prevent children maintaining a meaningful relationship with a parent but if the other parent doesn’t support that relationship then the relationship between the children and the parent living at a distance may be under threat.

3. It was the father’s case that the mother did not support his relationship with the children and was doing things such as interfering in their telephone communication and was attempting to influence them against him.

4. I cannot make a finding about whether that is true or not, but there is some evidence that the mother is reluctant for the children to have a relationship with the father and to speak with him. There is some suggestion of that, and she certainly didn’t initiate regular time after she left with the children.

5. It is also concerning that W refused to spend time with the father on either of the two visits that I ordered. That may be due to W’s experiences with the father and the nature of his relationship with the father. I cannot rule that out. There is also a possibility, though, that something else is operating in the matter.

6. So to summarise, the father is certainly concerned that his relationship with the children may be under threat if they remain living at a distance from him and in the substantial care of the mother. I cannot make a finding that that is the case. I also cannot rule it out, so it is a concern in the matter.

7. The mother alleges, of course, that there has been family violence, and she gave wide-ranging evidence about that. If that proves to be true then it would provide some justification for her being protective of the children in regard to their communication with the father and in regard to their spending time with him. However this is another area in which I cannot make a finding about whether the allegations are true.

8. The mother’s evidence was colourful and alarming, but on many occasions it was light on detail and was a very general statement and there is not a lot in this matter to assist me to determine one way or the other whether family violence has occurred.

9. This is not a case in which there was any police involvement with the parties prior to separation. There was no suggestion by the mother that she had ever sought help from a counsellor or a domestic violence helpline.

10. None of those things mean that family violence has not occurred. There are many cases when people right to the end of a relationship never making a complaint to the police or even tell family and friends what is happening. It doesn’t rule out the fact that family violence has occurred, but it also leaves me in a position where I cannot make a finding that it has.

11. The Full Court has said in various cases that sometimes the Court has to make an assessment of probabilities and that sometimes it has to err on the side of caution. But this particular case – and I will make that clearer at the end – does not have the flavour or feel to me of a case in which I can confidently make an assessment that there is a probability or possibility that what the mother is telling me is correct. I simply do not know.

12. There are a couple of little things there that reflect poorly on the father:  the throwing of the baby gate and the father’s admission about yelling. But apart from that, I have a vast range of colourful allegations, some of which seem to appear unexpectedly. I may have missed it, because the mother’s affidavit is extremely detailed, but she made an assertion to the family consultant that the father had engaged in rough sex with her. I do not seem to recall reading that in her material – again, I could be wrong – but it is concerning that there are alarming allegations, colourful allegations, and not much to assist me to get a feel for whether there might be some credibility in the allegations.

13. This is not one of those cases where I can easily say that I need to err on the side of caution to protect someone from being exposed to or subjected to family violence.

14. The mother gave some very detailed evidence about being concerned about guns on the property. The parties lived on a rural property, and the father had quite a few guns.

15. The mother gave evidence about the fact that the father had an interest in guns from the beginning of their relationship and used them on another farm, which I think may have had a relatives’ property.

16. The father gave evidence about why he had the guns, and the mother conceded that the father used guns on farms from the time they met. There was no evidence of breaches of firearms legislation. The mother gave some alarming evidence about the father carrying a gun, leaving a gun unsecured and making her feel threatened by leaving a gun on a bed but those are all issues in dispute.

17. The Court always has to be very cautious when people make allegations not to lightly brush them aside. I deal with these cases day in and day out, and I deal with a range of cases in which I have to act protectively of people, and in which I often make no time orders. But I also have to be careful not to overreact to allegations, because that ultimately can result in a very poor outcome for children.

18. I have these allegations about the guns and anybody hearing allegations about guns and a remote rural property in a separation would be rightly concerned and would need to think carefully about what might be happening.

19. However I also have a situation where there is no evidence of obsessive or jealous behaviour by the father. I cannot see much of it all, if any, before separation and certainly none since. He has not tracked the mother, he has not gone to where she lives; he has not bombarded her with unpleasant emails.

20. What the father did, after the mother left, was seek mediation and seek to talk to her and see what he could do. On reflection I do not know if he sought mediation, but he certainly tried to talk to her and understand what was happening. He then went to a lawyer and commenced proceedings in this Court and he has waited patiently for the Court to deal with the matter.

21. The guns are with the police. The police collected them early on after the mother went to the police station. The father has filed an undertaking that he won’t attempt to retrieve them and, if necessary, if it would give the mother comfort, I could certainly make an order that they even be secured somewhere other than with the police, where they were under the control of both parties.

22. The mother is suspicious of the police action in relation to the guns when she went to the police to make a complaint, but the evidence in support of that being a concern is fairly scant. Her evidence was that the police had some sort of relationship with the father and might favour him in investigating any allegations. However the only evidence she gave in support of that was that the police sometimes went to a location where the father worked, and she wanted the Court to infer from that, that they had a relationship with him which might lead them to protect him.

23. In this current climate, where family violence is under close scrutiny and where police and everyone in the community are concerned about catastrophic events, it seems improbable that the police would protect the father and enable him to retain guns which might result in one of those catastrophic events. The mother’s allegations about the father’s relationship with the police, based only on the fact that they went to his employer, is too scant to lead me to be satisfied that I should be concerned that somehow the police would protect the father in relation to gun use, which would place her at risk.

24. In broad general terms, based on the evidence at the moment, I cannot be satisfied about the extent to which, if any, family violence occurred in the relationship. I cannot be satisfied that the mother is at risk of harm if she lives in the vicinity of the father. He does not have the firearms, and the totality of the evidence does not have a flavour in it of the father posing that kind of threat to the mother.

25. I cannot make findings about that of course. These are interim proceedings, but I have to make some sort of an assessment of probabilities, on the basis of the evidence, I cannot consider that probable and I certainly cannot be satisfied, on the basis of the evidence that the children are at risk of harm from the father.

26. The girls spent two periods of time with the father in January and December. They made absolutely no complaint about that, and for the same reason that I cannot be satisfied the mother is at risk of harm, I cannot be satisfied that the children are.

Additional Considerations

Section 60CC (3)(a) - any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. There are additional considerations in the Family Law Act. One of the additional considerations is the children’s views and this is another area where there is a dispute between the parents.

2. In her first affidavit the mother said that Y, of the four children, was keen to see the father, and that X said she would spend time with him but did not want to live with him. She said nothing about Z, and she said W was opposed to spending time with the father, but whether that arises out of issues with W or issues between the father and W is too early for me to say.

3. In her most recent affidavit, the mother said that Z was now saying that she wanted to live with both her mother and her father. She did not comment on things Y was saying, and she also did not comment much at all on things X was saying.

4. The father said that Y and Z did not want to go home after their visits and that X asked him at changeover to, “Please, just hug the mother”.

5. At the child inclusive child dispute conference Y, again, was the most enthusiastic of the children about the father. X would not talk and it is impossible for me to say why; it might be because she did not want to upset either of her parents, there might be something else behind it, but she would not talk and Z is not reported to have said anything about her parents. W was adamant that he did not want to spend time with the father.

6. One of the things that concerns me about the mother’s most recent proposal for interim orders is that she sought an order that W and X not be required to spend time with the father, if they did not want to but I could not see anything in the material which would support a finding that X did not want to.

Section 60CC(3)(b) - the nature of the relationship of the child with:

1. each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child

1. I have to consider the nature of the relationship between the children and each of their parents. It is too early for me to be absolutely certain about that.

2. W is currently resistant to spending time with the father. The father said that W had some issues – I think he said he had autism. I do not recall the mother identifying a diagnosis although she did make mention of W having some problems because she commented on the father saying he did not want a ‘special ed.’ child.

3. So W would appear to have some issues, although it is too early to say what they are. He is saying he does not want to spend time with the father. What that is arising from is impossible for me to say.

4. X, Y, and Z have changed-over between the father and the mother on two occasions. They went to spend time with him, they did spend time with him, and they came back. Importantly, in a lengthy affidavit the mother filed after the second visit, she did not suggest the father failed to look after them or that they had complained about the time they spent with him.

Section 60CC(f) - the capacity of:

1. each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

1. I have to consider the capacity of each parent to provide for the needs of the children. It is far too early for me to make findings about both parents, in any comprehensive sense in that regard.

2. The mother is certainly, at the moment, properly sending the children to school and looking after them on a day-to-day basis. Whether there are issues with her capacity to provide for their emotional needs, I cannot say; there may not be, but there may be.

3. The mother made a couple of significant complaints about the father’s parenting capacity.

4. She said that he drank excessively. I cannot make a finding about where the truth lies about that. The father said that he did not drink excessively, but he did drink socially. He did a CDT test which did not suggest regular excessive drinking.

5. Those tests are not the be all and end all of investigating the alcohol consumption issue, they only go back three weeks and a small percentage of the population does not show a high CDT test reading, even if they are drinking heavily. It is not a complete response to an allegation of excessive drinking, but the father did voluntarily do the test and it does not raise any issues of concern.

6. I made an order that the father not consume alcohol while the children were with him on those two visits. It would appear that he complied with that from what Y, at least, and perhaps one of the other children, said at the child inclusive conference.

7. That, by itself, is a positive as well, because if the father is able to abstain from drinking if required to do so, that suggests that perhaps he is not in the grip of hopeless alcoholism. It may not mean that, I am simply saying that it may.

8. I cannot make a finding that the father does not have an alcohol problem, obviously, but I also cannot find that I need to err on the side of caution in case he does. The CDT test did not show up a problem and the children did not complain about his drinking during the visits. A couple of them did mention his drinking prior to separation, but I have a little bit of concern about whether some of the children may have heard things the mother has said and imbibed that.

9. It is difficult at this stage to place too much weight on some of the things the children have said about things that had happened prior to separation. The other thing is, there is no external indicia in the case to suggest that the father has an alcohol problem. It has not impacted on his work, there is no evidence of that, and I am sure the mother would have told me if there was, because she had been working at the same employer. He does not have any drink-driving convictions. I cannot entirely rule out the possibility that the father drank a lot in the home but I cannot make a finding that he is unable to abstain from drinking if I order him to do so and I cannot make a finding that alcohol was a problem, as opposed to something that the mother is exaggerating.

10. One of the difficulties in interim hearings is that the Court, and I have said this repeatedly, cannot make findings about issues in dispute. It can sometimes assess probabilities, but it also has to be very careful because at an interim stage people can exaggerate the bad and not mention the good. They can give colourful evidence which, on testing at trial, proves to be incorrect.

11. So I have to be very careful, and at the moment the situation with the father’s alcohol consumption is unclear to me, but it is certainly not something that I consider I need to err on the side of caution about, and find that it means that the father should have restricted or supervised time with the children.

12. The mother also made a lot of allegations about the father being short-tempered, yelling and exhibiting some violence. She described an incident where he threw a baby gate. The father admitted throwing the gate, although, he stated that it was a gate that was used to keep an animal off a carpet and he gave a very different version of events to what the mother did about that.

13. The children, at least a couple of them, at the child inclusive conference mentioned the father getting angry, and I think Y said he got red in the face. Again, the children have been in the mother’s care for some considerable time. I do feel that some caution needs to be exercised on placing too much weight on the things the children said at the child inclusive conference.

14. The girls have not had an adverse experience with the father in either of the visits that I ordered. Again, there is nothing in the evidence to suggest nor is there any external indicia to help me to determine that perhaps the mother is telling me the truth about the violence. The father does not have convictions and no workplace issues alleged. It does not mean the mother is not telling me truth, I hasten to say that, it just means I cannot make a finding, one way or the other, about where the truth lies about this.

15. I am not going say anything further about any of the other ss. 60CC (2) and (3) considerations because that won’t help me and it is very clear from reading the affidavits that this matter involves a very complex situation.

The parties’ cases

1. The mother’s case is that the father is a perpetrator of family violence who is a threat to her safety and the safety of the children, and who was a threat to her safety and the safety of the children when the parties lived in City B because he owned numerous guns and was not a responsible gun owner.

2. She said that in hindsight she believed she was at risk of harm living in the house and that she may be at risk of harm if she returned to City B because the police did not take her concerns seriously and were siding with the father.

3. She said that W did not want to spend time with the father, and that his and X’s wishes – although, as I indicated, I am not sure that I understand what X’s wishes are – should be respected. The mother said that she was settled in Town D and that the children were going to school there and expressed some pleasure in some of things that Town D offered.

4. The mother’s case was that the children were happy enough in Town D and that she had real concerns for her safety and for the children’s safety if they had to return to City B, and that the Court should leave the family where they were until there was further investigation.

5. The father’s case was that there had been no family violence and no irresponsible gun ownership. He said that he is perplexed about why the mother suddenly left. He said that City B Police were not especially his friends, and that he had handed over his guns and they were being held at the police station and he was content for them to remain there.

6. He denied that he had a problem with alcohol, or that he had problems containing his temper which impacted on his capacity to care for the children. It was his case that the mother was undermining his relationship with W, and that W, in fact, may not be coping with the sudden changes that have been thrust on him, which might explain some of his behaviour.

7. The father’s case was that the mother was getting in the children’s ears, and that their relationship with him would be under threat if they remained eight hours away from him.

Discussion

1. I cannot make findings about the issues in dispute and sometimes, as I indicated, the Court has to err on the side of caution, and act protectively in case allegations turn out to be true. The difficulty in this case though, is that the allegation the mother makes about the police being in cahoots with the father does not have a lot of strength to it. She did not name particular police friends, she just said that the father knew some police officers through work.

2. Nothing in the father’s history or employment suggests a problem with alcohol or with irresponsible use of firearms. He has no convictions and he has a good employment history. Nothing in his behaviour since separation or, indeed, in the mother’s evidence about what happened during the relationship, suggests obsession or jealousy which would place the mother at risk of harm.

3. The mother, in leaving City B and relocating to Town D, has suddenly uprooted the children and taken them to a location in which she, ultimately, may not settle. She said that she went there because her brother was living there and she could move in with him; she did not have a particular plan to go to Town D as a place.

4. There was no suggestion by the mother that the girls did not enjoy their time with the father over the Christmas school holidays or were placed at the slightest risk of harm when they spent that time. The girls and W have a right to spend regular time with the father.

5. I cannot make findings about what is going on in this matter at this time, but I cannot be satisfied that the children would be at risk of harm if they lived in the City B area, nor can I be satisfied that the mother would be at risk of harm if she did so.

6. I obviously cannot find that the mother is undermining the children’s relationship with the father, but I have some concerns about that which I cannot entirely dismiss, and the fact that W has refused to spend time with the father increases those concerns.

7. I cannot be certain that it is in the children’s long-term best interests to remain living in the place to which the mother has unilaterally relocated them, eight hours from City B. If the matter goes to a final hearing and the mother still wants to leave City B, it might be that after a proper examination of the matter, the Court will find that that is the appropriate outcome, but I cannot be satisfied that it is an appropriate outcome at present.

8. It might be, but it might also mean if the children remain there that their relationship with their father is at significant risk. That would not be a good outcome for the children, based on the evidence that both parties put forward about the children enjoying their time with their father over the recent school holidays. When I say the children, I mean the girls. The mother did not suggest that she could not obtain employment or housing in City B.

9. In my view it is in the children’s best interests to return to the City B area so that a proper investigation of the matter can take place, without the intervention of a situation of recent development. If the mother wants to relocate, she can properly pursue that application from there.

10. I am not, however, going to order the mother to return; that is a matter for her. She certainly put forward an alternative set of orders saying that she would. What I am going to do is order that the children be returned to City B. The father gave some evidence in his affidavit about how he could take care of the children if that occurred and nothing in the material available to me suggests that I should be so concerned about that that I should refuse to make an order which might result in the children living with the father because the mother chooses not to return to City B.

11. So I am going to make an order that the children be returned to City B. If the mother returns as well, that will be a bonus for the children, and I can make the orders about the children living with the mother and spending time with the father. If she does not, that is her choice, and I intend to make an order that in that event the children live with the father.

12. I am not blind to the fact that there may be some difficulties with W in relation to that. I cannot be sure that W would not settle if he came back with his sisters, but he may not, and the Court may then be faced with a situation where it is obliged to consider separating the siblings.

13. There is nothing in the evidence to indicate to me that the children will be devastated by an order that they return to City B, or even an order that they live with the father. Y, on the evidence, would accommodate that easily and Z has talked about living with both parents – she is young, but she is almost five.

14. In relation to X, there simply is no evidence to suggest that she would resist living with the father. The underpinning for the mother’s suggestion that she should have a choice about spending time with the father is something I cannot presently see. If there is an ongoing issue with W that will have to be dealt with separately.

15. It is not an ideal outcome but given the choices between outcomes I am prepared to make an order for that to occur, rather than having an ongoing risk that the children’s relationship with the father may be under threat.

The orders

1. Obviously, I am not going to make an order that W and X not be forced to spend time with the father against their wishes.

2. The father sought orders about the children being re-enrolled at School I. I am not going to make a prospective order about where the children are to be enrolled; the parents will have to work that out, but there is something else I just want to mention at the end of this judgment.

3. The parents agreed that there should be an order for equal shared parental responsibility and what follows from that is that I have to consider the provisions of s.65DAA of the Family Law Act. Section 65DAA states that if an order for equal shared parental responsibility is made, the Court has to consider whether the children spending equal time or substantial and significant time with both of their parents is in their best interests, or reasonably practicable.

4. It would not be reasonably practicable for the children to spend either equal time or substantial and significant time with both of their parents, if the mother continued to live with the children in Town D and the father remained in City B.

5. If the children live in City B however, I can make an order that the children spend substantial and significant time with both of their parents, and an order for the children to live with the mother and spend from Thursday to Monday with the father achieves that. In my view, it is currently in the children’s best interests for that to occur.

6. As I have indicated, it is important at this stage of the children’s lives, and until there is further investigation of the matter, for their relationship with both of their parents to be properly maintained. An order that the children live in City B, if the mother returns, will achieve the outcome of the children spending significant and substantial time with both of their parents. If she chooses not to then that cannot be achieved, but the mother has a right to choose where she lives and there is nothing the Court can do about that.

7. I also pause to add, of course, that in due course at a final hearing, the Court will have to consider whether the father can move, but that is not something I was asked to consider at this stage and it is really a matter for a final hearing.

8. The other thing I did want to mention was this: the father offered for the mother to live in the former matrimonial home at Town H; the mother made it very clear that this was not something she wanted to do, so it is not something I have considered as part of these orders.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:    

Date:             1 March 2021