Appleby & Appleby

[2015] FamCA 138

FAMILY COURT OF AUSTRALIA

APPLEBY & APPLEBY [2015] FamCA 138

FAMILY LAW – CHILDREN – interim parenting – where the mother has unilaterally taken the children to Queensland – where the mother seeks to relocate to Queensland – where the mother seeks sole parental responsibility – where the father opposes the orders sought by the mother – where if permitted to relocate on an interim basis would in effect determine the matter also on a final basis – protection from harm – best interests of the children.

Family Law Act 1975 (Cth) ss 60CC, 61C, 61DA

Goode and Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

George and George [2013] FamCAFC 182

Dieter & Dieter  [2011] FamCAFC 82

APPLICANT: Ms Appleby

RESPONDENT: Mr Appleby

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: PAC 5724 of 2014

DATE DELIVERED: 17 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 16 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Cantrall

SOLICITOR FOR THE APPLICANT:	Mahony Family Lawyers
SOLICITOR FOR THE RESPONDENT:	Mr Halliday of Marsdens Law Group
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Hafey of Legal Aid NSW Parramatta Family Law

Orders

1. The children are to live with the mother in Sydney.

2. The mother is to immediately re-enrol the children in Suburb B Primary school, and the children are to commence attending at that school no later than within seven days of this order.

3. The application with respect to the father’s time with the children is adjourned to the first day in the Less Adversarial Trial which is to be fixed to occur as soon as practicable after the preparation of a Children’s and Parents Issues Assessment by the Family Consultant.

4. The father is to undergo a urinalysis test in respect of his cannabis use within 24 hours of being notified by the Independent Children’s Lawyer of the requirement that he undertake such testing.

   (a)The Independent Children’s Lawyer may request that father undertake such tests upon 24 hours’ notice on no more than one (1) occasion per month.

   (b)Such testing is to be at the father’s expense in its entirety.

   (c)The test results are to be made available to the Independent Children’s Lawyer immediately after the test has been concluded and the results are known.

   (d)In the event the father does not undertake the test within the time specified then the matter may be relisted upon forty-eight (48) hours’ notice by the Independent Children’s Lawyer and the father will be required to provide compelling reasons why he did not take the test and why time with the children should not be suspended.

5. The parties are to participate in the Child Responsive Program including attending all meetings fixed by the Family Consultant and ensuring that the children are to attend all meetings as instructed by the Family Consultant.

Notation

1. An appointment has been made for the parties’ attendance upon a Family Consultant at 9:00am on 5 May 2015 at the Chid Dispute Services in Parramatta. Both parents and children are required to attend

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 5724 of 2014

Ms Appleby

Applicant

And

Mr Appleby

Respondent

REASONS FOR JUDGMENT

1. The mother in this application for interim orders seeks to relocate herself and her two children from Sydney to Queensland, to have sole parental responsibility for the children and for the children to spend no time with their father. Each of these orders is opposed by the father. The Independent Children’s Lawyer opposes the application for an order that would permit the children to live with their mother in Queensland and says they should return to New South Wales. The Independent Children’s Lawyer seeks to adjourn the proceedings in respect of the children’s time with their father. All parties agree that the children should live with their mother.

2. The proceedings concern C, who is 10 and D who is seven, the children of Ms Appleby (“the mother”) and Mr Appleby (“the father”) who separated in October 2014 following an incident where the police attended the family home and arrested the father for allegedly assaulting the mother. It is the mother’s case that she was the subject of domestic violence for many years, to which the children were exposed, and that on occasions including in October 2014 the father was also aggressive towards D. The father denies that he has at any time been violent and aggressive towards the mother or the children and is defending the offence with which he was charged in October 2014. It is also the mother’s case that the father misuses cannabis and alcohol and that at times his cannabis and alcohol misuse is associated with his violence. The father concedes that he is a cannabis user and that it is a matter of significance in relation to his care of the children and says that he is making attempts to reduce that use. Although he does not identify the extent of his cannabis misuse he agrees to a court order sought by the Independent Children’s Lawyer that his cannabis use is monitored.

3. Following the incident in October 2014, which resulted in the father being charged and an apprehended violence order (“AVO”) being made which prohibited the father from contacting or approaching the mother and children in any manner, the mother initially remained living with the children in the family home in Sydney. She travelled to Brisbane with the children in about the last week of November 2014, prior to the end of the school year. Initially it was the intention of the mother, as I understand it, to spend the Christmas holidays with the children in Brisbane and to return to Sydney for the commencement of the 2015 school year. Initially the mother and children were staying with a maternal aunt and their family, in Brisbane, though the mother has now found her own premises for herself and the children. The children have not seen their father since the parents separation and it is the mother’s case that the children are in fear of the father and do not wish to see him.

4. On 10 February 2015 the mother amended her Application for interim orders to relocate to Queensland on an interim basis.

5. The relevant principles in relation to parenting and interim proceedings are set out in Goode and Goode[1]. Although the competing proposals are to be evaluated by reference to the agreed or uncontested facts, in some cases, the court may also have regard to the matters in dispute, especially where the contested facts relate to an assessment of risk. This assessment comprises two elements that is a prediction of the likelihood of the occurrence of harmful events and a consideration of the severity of the impact caused by those events. (see George and George[2], a decision of the Full Court citing Dieter & Dieter[3]). In this case, in order to determine the issues of parental responsibility and in particular the father’s time with the children, I must of necessity give some consideration to the mother’s allegations of violence throughout the marriage and the specific incident in October 2014.

   [1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

   [2] [2013] FamCAFC 182

   [3] [2011] FamCAFC 82

6. In relation to the mother’s application for her to be permitted to relocate the children’s residence to Brisbane, each of the parties made submissions in relation to the factors set out in section 60 CC of the Family Law Act 1975 (Cth) (‘The Act’) which must be considered by a court when making a determination as to the best interests of the children. In considering each of the orders sought in this parenting application, I must regard the best interests of the children as the paramount consideration.

7. Under section 61 DA(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. However, when making an interim order the court may consider that it would not be appropriate in the circumstances for the presumption to be applied. At this interim stage, in my view it would not be appropriate in the circumstances to apply the presumption as so many critical facts relating to the children’s best interests are unknown or in dispute. For the same reason at this stage I cannot find that it is in the children’s best interests for the order sought by the mother for sole parental responsibility for the children to be made. Accordingly, the parents will continue to each exercise parental responsibility for the children under section 61C(1) of the Act.

8. Submissions made on behalf of the mother essentially focus on the primary best interest consideration of the need to protect the children from physical harm from being exposed to family violence and in the case of D being subjected to abuse. It was also submitted by the mother that some weight should be attached to the views of the children, which she says are that they are frightened of their father and do not wish to see him. It is also is submitted that the change in the children’s circumstances as a result of the mother having moved to Queensland has resulted in a benefit for the children as the mother is less stressed and anxious as a result of the move and that D’s anxiety and behavioural problems have also settled. It is submitted that if the children are required to return to Sydney the mother’s anxiety will be increased as she has no other place to reside than the former family home. It is the mother’s case, that is disputed by the father, that there were numerous visits by family members and friends of the father to her home for the purpose of harassing her during the month she lived there prior to moving to Queensland, which had the effect of making her feel unsafe in the family home. The mother’s submissions in relation to each of the orders she seeks are interconnected and she submits that if the court is minded to make an order that the children spend no time with their father then they will be better protected and their interests better met in Queensland than in Sydney.

9. It is essentially the father’s case that most of the matters upon which the mother relies in submitting that it is in the best interests of the children to relocate to Queensland and spend no time with him are matters which are in dispute. In particular, he disputes that the children are at any risk of harm from him and to the extent that the court may find that he does represent a risk of harm, he would accept that any time that the children spend with him could be supervised to mitigate that risk. The mother also accepts that in the event that the court makes orders for the children to spend time with their father, any risk may be reduced by that time together being supervised.

10. It is submitted by the Independent Children’s Lawyer that the court should order the return of the children to Sydney because, having regard to the likely delays in the final hearing of the matter, if the children are permitted to remain in Brisbane the final application for relocation will effectively have been determined by the time the matter is heard. In my view, there is significant force to this argument.

11. It is difficult at this stage to apply the section 60CC considerations to the undisputed facts and as indicated previously some regard must be had to the disputed facts. The section 60CC considerations will be applied to those facts which are undisputed. So far as the primary considerations are concerned, although the fact of an AVO having been made and some of the observations of police attending the family home at the time of the incident appear to give some weight to the mother’s allegation that she was assaulted by the father, the issue of exposure to family violence generally is a very significant matter of dispute between the parties. So far as the other primary consideration is concerned, under the mother’s proposal, that is, that the father would spend no time at all with the children, it is difficult to see how the children will receive the benefit of having a meaningful relationship with their father. At this stage having regard to their age and the unsatisfactory manner in which the “views” said to have been expressed by the children have been put before the court, I regard the views of the children as unknown. Apart from the fact that the mother has been the primary care giver and that the father has nonetheless had a significant involvement in the raising of the children, the nature of the children’s relationship with each of their parents and other significant people is unknown.

12. The change in circumstances that would be brought about by the children returning to Sydney in my view would be minimal. The home in which the children were raised is available to the mother and she and the children are currently protected by an AVO. The children would be able to return to the school they have attended all their school lives, and to their friendship group and extracurricular activities. Both parents have agreed that in the event the children are returned to Sydney that enrolment in a different school for C, which had been arranged, would not be proceeded with, and that both children could return to their previous primary school. The children are at this stage only a few weeks into a school term and involvement in activities. The mother has resided in Sydney for many years and has various supports available to her, including friends and some services she accessed during the month that she and the children lived in the former family home prior to her departure. There would be no practical difficulty and expense for the children to spend time with, and communicate with their father under any orders that may be made by the court should they returned to Sydney. On the other hand, if they are permitted to relocate to Brisbane there will be some practical difficulties and expense in the children spending time with their father, who is based in Sydney. A number of the other considerations such as the capacity of the parents is unknown as a Family Report has not yet been prepared. The issue of exposure to family violence as indicated is a matter of significant dispute.

13. Having regard to the best interest factors and accepting the submission of the Independent Children’s Lawyer that a determination of relocation on an interim basis would effectively mean that that issue is being determined finally with very little information, I am of the view that it is appropriate to order that the mother return with the children to Sydney.

14. At this stage I am not of the view that I have sufficient information to consider the application of the father for the children to spend time with him and accordingly adjourn the application for that order until the Independent Children’s Lawyer has had an opportunity to interview the children and the parents and children have participated in a Children’s and Parents Issues Assessment with a Family Consultant. It may also be preferable for the interim application for the children’s time with their father to be considered after the completion of the criminal proceedings, though if they are to be protracted it may be that the interim order can be considered at an earlier stage. For this reason orders are made in relation to assessment by a Family Consultant and the matter to be relisted for an intake of the Less Adversarial Trial. For the reasons given, the application for an order that the mother have sole parental responsibility for the children is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 17 February 2015.

Legal Associate:

Date:  5 March 2015.