Attwill & Marden
[2018] FCCA 1401
•30 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATTWILL & MARDEN | [2018] FCCA 1401 |
| Catchwords: FAMILY LAW – Interim parenting arrangements for children aged 5, 8 & 10 – unilateral relocation of children from Adelaide to Sydney by mother – father seeks return of children to metropolitan area of Adelaide – application by mother for change of venue and for children to remain in her care in Sydney area – mother alleges father has been violent towards her and has exposed children to family violence – mother alleges father has abused children – father denies all allegations – parties in dispute as to previous care arrangements for children – nature of interim hearing – best interests. |
| Legislation: Family Law Act 1975, ss.4; 4AB; 60B; 60CA; 60CC; 61DA; 65DAA Federal Circuit Court Rules 2001, r.8.01(2) |
| Cases cited: Cowling v Cowling (1998) FLC 92-801 Deiter & Deiter [2011] FamCAFC 82 SS v AH [2010] FamCAFC 13 Eaby & Speelman (2015) FLC 93-654 B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 AMS & AIF (1999) FLC 92,852 Morgan & Miles [2007] FamCA 1230 C & S [1998] FamCA 66 |
| Applicant: | MR ATTWILL |
| Respondent: | MS MARDEN |
| File Number: | ADC 4580 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 24 May 2018 |
| Date of Last Submission: | 24 May 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 30 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lewis |
| Solicitors for the Applicant: | Legal Services Commission of South Australia |
| Counsel for the Respondent: | Ms Spence |
| Solicitors for the Respondent: | Franklin Legal |
ORDERS
UNTIL FURTHER OR OTHER ORDER:
The children [X] born 2007, [Y] born 2009 and [Z] born 2012 live with the mother and she be permitted to live in Sydney.
The matter be transferred to the Federal Circuit Court of Australia, Sydney Registry.
IT IS NOTED that publication of this judgment under the pseudonym Attwill & Marden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4580 of 2017
| MR ATTWILL |
Applicant
And
| MS MARDEN |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Attwill “the father” and Ms Marden “the mother” are the parents of three children – [Z] born 2012; [Y] born 2009; and [X] born 2007.
These reasons relate to interim arrangements for the care of the three children concerned, particularly whether in the medium term, they should continue to live with their mother in Sydney or be returned to live in Adelaide, either in the sole care of their father, or if the mother elects to return to Adelaide, with her, in order that they will be able to pursue some form of relationship with their father.
It is the mother’s case that she was compelled to flee an abusive and dangerous relationship, which left her no alternative but to move to Sydney, far away from the father, where she feels safe and protected. On the other hand, the father asserts that the mother’s claims of her and the children being victims of violence emanating from him have been concocted to enable the mother to pursue her own ulterior agenda, which is to live in Sydney in order to deprive the children of having any relationship with their father.
This difficult issue arises at an early and interim stage of the proceedings. As such, the evidence available to the court is limited and for logistical reasons, what evidence is available cannot easily be subject to any extensive process of scrutiny through cross-examination.
In resolving this issue, the best interests of the children concerned remain the paramount or most important consideration. One aspect of the children’s best interests is their entitlement to maintain a meaningful level of relationship with both of their parents.
At the same time, the overall safety of the children must be the court’s fundamental concern. Essentially, it is the mother’s case that it would pose an unacceptable risk for the children if they are compelled to return to a location in which they have been exposed to family violence and in which their primary provider of care feels profoundly unsafe.
Accordingly, at this stage, the task of the court is to assess risk. It has to do so against a background of incomplete and untested evidence, which has the potential to render any such determinations both erroneous in the longer term in the light of any new material which comes to hand and necessarily controversial now, given the moment of the interim decision for both parties concerned.
In addition, in the context of a children’s matter involving a unilateral relocation, the issue of risk cuts both ways. There are the obvious risks of exposing children and their carer to a violent and abusive parent; there is also the risk of depriving children of a potentially worthwhile and significant relationship, on the basis of uncertain and controversial evidence.
The court’s task, notwithstanding the inherent limitations of the evidence before it, is to assess the degree of risk attaching to the children concerned and put in place responses which are proportionate to the degree of risk so identified.
Finally, in my view, there is one further inherent risk arising from these proceedings. I must be careful not to allow any stereotypical attitude to influence my decision in this matter, relating either to the sex or ethnicity of either of the parties concerned.
Background
The father commenced these proceedings on 3 November 2017. On an interim basis he sought the following orders:
·An urgent listing;
·A recovery order, pursuant to section 67Q of the Family Law Act 1975[1] in respect of the children;
·A Commonwealth Location Order pursuant to section 67N of the Act, directed to the Minister for Education & Child Development;
·An order preventing the removal of the children from Australia and the placing of their names on the Airport Watch list.
[1] Hereinafter referred to as “the Act”
On a final basis, he seeks the following orders:
·The parties have equal shared parental responsibility for the children;
·The children live with him;
·The children spend time with the mother, at times and subject to any conditions agreed between the parties.
Both the father and mother are from (country omitted). The father was born on 1980. The mother was born on 1989. The parties married in (country omitted) on 2006. Each of the children was born in (country omitted).
It is the father’s position that neither party worked whilst in (country omitted) during the marriage. As a consequence, he claims that both he and the mother were equally involved in providing care for the children from the earliest ages. The mother disputes this assertion.
It is the father’s case that he and the mother consensually decided to move to Australia in early 2016, and claim refugee status. It is his case that he arrived in Australia, with [X] and [Y], on 2016, whilst the mother remained in (country omitted) with [Z] until appropriate visas could be obtained for them.
The mother disputes this evidence. She asserts that she separated from the father in 2015 and shortly thereafter, she applied for a divorce in an (country omitted) court. At the time, she and the children were living with her parents in (country omitted).
However, it is her case that subsequently, following the father’s promise to her that he would cease assaulting her and the children and on the assurance of the children’s paternal grandparents that, if she and the children came to Australia they would have more rights, she agreed to come to Australia. In any event, given the father did not agree to the divorce, the (country omitted) authorities declined to grant it.
Accordingly, it is the mother’s position that she was the children’s primary provider of care, in (country omitted) and during this period she was subjected to very serious violence. This violence can be summarised as follows:
·She was beaten with thick cables whilst pregnant with [X];
·She was chocked to the point of unconsciousness;
·She was assaulted by the placement of a knife on her throat, whilst threatened with death and dismemberment;
·She was beaten with a baseball bat;
·Her arm was fractured when the father twisted her arm behind her back;
·She was raped;
·She was abused in vile and demeaning terms.
In addition, the mother asserts that her father suffered a fractured nose when assaulted by the father, as were [X] and [Y]. [X]’s nose was broken when he was around five years of age; whilst [Y] suffered a similar injury when he was two, when he was injured when struck by a baby walker thrown at him by the father.
On any view these assaults, if true, are very significant in nature. The mother’s evidence is that, notwithstanding cultural and societal issues which render it difficult to report family violence to authorities in (country omitted), she did complain to police and charges were laid against the father. In addition, she, the maternal grandfather, as well as [Y] and [X], received medical treatment in respect of the injuries allegedly inflicted upon them by the father.
At this juncture, it is unclear to me whether it is logistically possible for records of these interventions to be obtained from (country omitted) and, if so, how long it would take. In addition, I have no way of knowing how comprehensive such records are likely to be and therefore what would be their utility when translated into English in these proceedings.
It is the submission of counsel for the mother, Ms Spence, that her client has provided evidence of these allegations with a significant level of precision which adds credibility to them. The father’s position is clear – all the mother’s allegations are “lies”. He asserts that he has never abused the mother either physically, sexually or emotionally or ever harmed the children. In addition, he disputes that the (country omitted) authorities have ever been involved with him in respect of any such complaints of violence.
The father asserts that following his arrival with [X] and [Y], in Adelaide, he applied for a spousal visa for the mother, which included [Z]. They arrived in Adelaide on 2017 and settled with the father, [X] and [Y], at accommodation rented by the father at Suburb 1.
Whilst she was in (country omitted) with [Z], the mother asserts that the father would not allow her to speak with [X] and [Y]. It is her case that when she arrived at the Suburb 1 home, she found it to be in an unhygienic and unkempt state. The implication of her evidence being that the father was not capable of caring for the two older children.
Upon her arrival in Australia, the mother commenced English classes at School B. [X] and [Y] attended primary school at Suburb 1; whilst [Z] attended pre-school and childcare at School A.
There was an incident, involving [X], which occurred on 16 September 2017. The mother asserts that the father assaulted [X], when he ran away from him. The father followed the child, grabbed him around the throat and dragged him away, causing scratches, bruises and marks, on his face and the back of his neck.
I have been provided with photographs of the injuries allegedly inflicted on the child.[2] These injuries were apparently noted by the authorities at [X]’s school, who referred the incident to Women’s Safety Services and the police.
[2] See annexure A to the mother’s affidavit filed 10 May 2018
Again, the father asserts that the incident outlined by the mother, regarding how [X] suffered these injuries, is completely fabricated. He asserts that he inadvertently scratched the child with his fingernails when he was appropriately disciplining the child for being rude and disrespectful to his siblings.
The mother elected to leave the family home on 29 September 2017. She told the father that she and [Z] were attending a party at School B to celebrate the end of term. At the same time, domestic violence workers arranged to bring her and [Z] to the children’s school and later made arrangements for mother and children to be placed in emergency accommodation.
The mother confirms that she had possession of the children’s passports and their (country omitted) citizenship papers. It is her evidence, confirmed by the father’s experience, that she changed her phone number and deleted her Facebook account, taking care to remove any apps which may reveal her location. She did so to prevent the father locating her. However, she provided her new telephone number to SAPOL and her domestic violence worker.
The father reported the mother to police as a missing person a few days after she had left the former family home. In this context, the mother alleges she was contacted by the father on her new telephone number, and in the ensuing conversation, he begged her to return to him. The mother now deposes that this apparent breach of security has caused her to question police procedures put in place to protect her.
The mother has indicated that the father told her he obtained her telephone number through a friend in the police. She has made a complaint about the incident, which the police authority have discounted. Again, this has caused her to question the integrity of the measures put in place to provide for her protection.
On 10 November 2017, the mother made an application for an interim intervention order against the father at the (omitted) Magistrates Court. This order was granted on an ex parte basis on 14 November 2017 and included the children as protected persons. It was served on the husband on the following day. The application was adjourned for further hearing to 13 December 2017. I have not been advised what occurred on this date.
It is the mother’s evidence that both she and the children have been exposed to family violence whilst in Australia. This has been particularly pronounced so far as [X] has been concerned because as the oldest child, he has attempted to protect his mother from his father violent behaviour.
As a consequence of his exposure to his father’s violent conduct, it is the mother’s positon that [X] suffered psychological harm, which has lead him to act out aggressive behaviour at school and to misbehave aggressively towards other children. In addition, the mother alleges that the father has bitten [Y] on the ear and arm and regularly slaps him, causing the child to be nervous and frightened.
It is the mother’s case that, upon her arrival in Australia, she did not know what to do in respect of seeking help to protect herself and the children from the father’s violent behaviour. However, in September of 2017, her predicament came to the notice of both staff at School B and the children’s school, which led to her referral to domestic violence helpers. At this point, I have not been provided with any evidence from these workers as to their specific involvement with the mother and how they assisted her and the children.
Essentially, it is the mother’s evidence that she is a highly vulnerable person, not only because she has been exposed to serious family violence, but also because she is disadvantaged by her cultural and non-English speaking background, including her refugee status within Australia. It is also her evidence that she found the emergency accommodation provided for her, to be both unsafe because her requirement to attend Church would almost certainly bring her into contact with members of the (country omitted) community associated with the father and culturally inappropriate, particularly given the absence of (activities omitted).
In this situation, the mother was fearful that it was only a matter of time before either she or the children came into physical contact with the father, whom she alleges is a (occupation omitted), whose occupation renders him highly mobile in Adelaide. In this context, she alleges that [X] became anxious, whilst in Adelaide, whilst he and the mother were living in emergency accommodation.
In these circumstances, the mother deposes as follows:
“The children and I moved to Sydney on 11 November 2017. I made this decision after SAPOL told me that I could travel to Sydney for a holiday. My Domestic Violence Worker helped me to organise Centrelink payments. I received a payment of several hundred dollars and was able to book flights to Sydney for only $69 each. The children and I did not have many belongings to take with us. I decided to stay in Sydney out of fear of the father. I had already told my Domestic Violence Worker that I may not return. I believe it is in the children’s best interests to live in Sydney as there is a much bigger (nationality omitted) community it would therefore be harder for the father to find me and the children there.”[3]
[3] See mother’s affidavit filed 10 May 2018 at [41]
It is the father’s position that the mother is being disingenuous. It is his case that the move to Sydney is totally out of proportion to the degree of risk arising in the case, particularly given the intervention order was well in progress, when the mother decided to leave Adelaide and there have been no significant breaches of the mother’s security, since she left the former family home in late September of 2017.
In these circumstances, the father contends that the mother’s true motivation for leaving Adelaide is to prevent him and the children having any proper level of relationship with one another, which he asserts will be inimical to their best interests in both the short and longer term.
The mother responded to the father’s application on 10 May 2018. This was following the making of a Location Order pursuant to section 67M of the Act, on 22 November 2017. Subsequently the mother was served, at an undisclosed address in Sydney, in April of 2018. In her response, the mother seeks the following interim orders:
·The children live with her in Sydney;
·An independent children’s lawyer be appointed;
·The proceedings be transferred to the Sydney Registry of the court for further hearing;
·Injunctions be issued restraining the father from assaulting, denigrating the mother and physically and verbally abusing the children;
·The father be directed to undertake a parenting course and engage with anger management counselling.
The matter came before the court, on 6 April 2018, following service of the father’s application upon her. She had the assistance of the duty solicitor but had not then had the opportunity to file responding affidavit material. However, the duty solicitor was able to inform the client of the mother’s allegations of serious family violence.
Subdivision D of division 8 of Part VII of the Act provides direction, for the court, as to how it is to respond to allegations of child abuse and family violence. In general terms, the court is directed to act expeditiously and where issues of risk are raised, as soon as is practicable, the court must:
·consider what interim or procedural orders should be made to:
Ø to enable appropriate evidence to be gathered expeditiously;
Ø to protect the children or any of the parties to the proceedings;
Ø deal with the issues raised by the notices as expeditiously as possible;
As a consequence, on 6 April 2018, the court issued a notice, pursuant to section 69ZW of the Act requiring SAPOL to produce to the court details of reports and notifications concerning allegations of child abuse and exposure to family violence involving the subject children in these proceedings. SAPOL has responded to this notice, as have the Department for Child Protection, the statutory authority in South Australia responsible for the welfare of children in the State.
It is now apparent that the father has been charged, by police, with two counts of aggravated assault on a child/spouse. In addition, the mother alleges that police are investigating a complaint that the paternal grandfather has breached the interim intervention order in her favour by telephoning her. In due course, she proposes to tender a translation of the telephone call, which she asserts was threatening in nature.
Records indicate that there have been seven notifications received by the Department since June of 2016. None of these have been substantively investigated. Most recently, a Departmental multicultural engagement team was formed for the family but the case was closed, in May 2018, as the team were unable to locate any members of the family after leaving notes at the former family home.
Accordingly, the Departmental records do not provide any concrete evidence supporting the mother’s allegations of exposure to abuse and family violence. The only physical evidence of such abuse being the photographs of the scratches to [X]’s neck. In these circumstances, the father’s position in the case is encapsulated in the following portion of his affidavit material:
“I say that the mother has fabricated allegations of abuse against me, and then taken the children interstate without my knowledge or consent to stop me from seeing them. I seen [sic] the return of the children to my primary care – but in any event seek return of the mother and children to Adelaide so that contact can occur on a regular basis. I have no capacity to have any relationship with the children whilst in Sydney.”[4]
[4] See father’s affidavit filed 18 May 2018 at [12]
On the other hand, the mother asserts that it will be difficult for her to return to Adelaide because she and the children will be placed in a situation of once again living in fear of the father. It is her case that she is now well settled in Sydney, where she has a supportive social worker and has been able to make friends within the (nationality omitted) community.
It is also her case that [X]’s behaviour has been much improved since moving to Sydney. In this context, she asserts that the older children have indicated to her that they do not want to see the father, or any other members of the paternal family.
Legal principles applicable
The evidence, so far available to the court in this case, is confusing, contradictory and disturbing. This evidence has been hastily prepared, against a background of extreme emergency.
In addition, these proceedings arise at the interim stage. At this stage, necessarily, the hearing before the court takes place in a shortened form, which does not allow for cross-examination. In addition, other important sources of evidence, such as an independent expert assessment, of the family concerned, are not usually available.
At the interim stage, the Full Court has pointed out that ordinarily, the court should not be drawn into issues of fact or matters relating to the merits of each parties substantive case. Rather, it should look to what can be agreed between the parties and any less contentious matters.[5]
[5] See Cowling v Cowling (1998) FLC 92-801
As the brief summary of the parties’ competing cases indicates, in this matter, there are few, if any, such less contentious matters and the parties themselves agree on practically nothing of significance.
From the father’s perspective, the mother is intent on severing his relationship with the children on concocted grounds. On the other hand, the mother asserts that she had no alternative other than to flee a violent and abusive relationship, which rendered her physically and emotionally unsafe in Adelaide.
At this stage, this central evidentiary issue is incapable of final determination. However, notwithstanding this evidentiary difficulty, the court must still make a decision and put in place the orders, which it considers will best regulate the situation, so far as [X], [Y] and [Z] are concerned, according to the relevant principles contained in the Act.
In this context, it is clear that the court is required to consider child protection issues, in its decision making processes, and should not defer its responsibility, in this regard, because of deficiencies in the evidence before it or, more importantly, because it is not in a position to resolve definitively controversies arising between the parties, including in respect of potential child abuse issues.
In Deiter & Deiter[6] the Full Court said as follows:
“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”
[6] See Deiter & Deiter [2011] FamCAFC 82 at [61]
In SS v AH[7] the Full Court said as follows, in respect of the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned. This is the case in the current matter. The Full Court said as follows:
“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.”
[7] See SS v AH [2010] FamCAFC 13 at [100]
In Eaby & Speelman[8] the Full Court endorsed this approach as enabling “the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.” In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution at the interim stage.
[8] See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]
With those strictures in mind, I turn now to the specific provisions, within the Act, dealing with the making of parenting orders and the relevance of family violence to such orders. It is to be noted that although the nature of the hearing is different, at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.
In deciding to whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.
There are two primary considerations, which are 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.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
Accordingly, one of the major emphases, in the Family Law Act, is on protecting children who have been exposed to family violence in the past or who may be in the future. It is a factor to be given priority, over other considerations, including the likely benefits of a child having a meaningful level of relationship with parents.
The primacy of this consideration has the potential to be crucial in cases involving the unilateral relocation of children, where that relocation is said to have been precipitated by protective concerns relating to the children.
In such circumstances it is likely to be necessary for the court to examine the situation, which confronted the parent who has relocated, in the context of these protective concerns and assess, as best it can, the gravamen of the emergency confronting that parent.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[9]
[9] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[10] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[11]
[10] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[11] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person. Both parties have made allegations, against the other, which fall within the examples listed in sub-section (2).
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure, which include:
·overhearing threats;
·seeing or hearing an assault;
·comforting or providing assistance to a member of the child’s family, following an assault;
·cleaning up after property has been damaged; and
·being present when police attend an incident involving an assault.
In this case, the conduct alleged by the mother clearly falls within the definition and exemplars of family violence. In addition, it is her case that the children themselves have both been the victims of direct violence, as well as being exposed to violent conduct inflicted upon their mother.
In assessing cases involving family violence, the court needs to be aware of the nature of family violence, in general terms. Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home.
Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred. However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”[12]
[12] See Eaby & Speelman (supra) at 80,322 [21] per Ryan J
Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act. It means:
“(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
Again, it is clearly the mother’s position that the children have been the subject of abuse as defined by the Act, either through direct assaults on their person or through exposure to family violence.
In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.
As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
Two of the principles underpinning Part VII of the Act [section 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.[13] For the reasons outlined already, such a degree of analysis is not possible at the interim stage.
[13] See AMS & AIF (1999) FLC 92,852
In Morgan & Miles,[14] 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.”
[14] Morgan & Miles [2007] FamCA 1230
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.” [15]
[15] C & S [1998] FamCA 66
Accordingly, in my view, the present case turns on the court’s view of the degree of emergency, which confronted Ms Marden, particularly when she decided to remain in Sydney and its assessment of the level of risk, which arise for the children of either continuing the current arrangements or changing them at the present time.
In conducting this assessment the court must be mindful of the limited nature of the hearing before it, but cannot abrogate its fundamental responsibilities because of the evidentiary challenges which such a hearing presents.
The factors to be considered in respect of the change of venue of proceedings are set out in Rule 8.01(2) of the Federal Circuit Court Rules and include the convenience of the parties; the limiting of expense; whether the matter has been listed for hearing; and any other relevant matter.
I have not been advised as to whether the matter is likely to be heard sooner or later in Sydney, as opposed to Adelaide. Nor have I been advised as the logistics of the hearing being expedited in Sydney.
At this stage, the case cries out for the appointment of an independent children’s lawyer. It also seems likely that there remains much evidence to be gathered, particularly in the form of an independent expert assessment of the family.
Both parties have indicated their inability to move to the location of the other’s preference. As such, it seems to me, that the determination at the interim stage of where the children are to live, is likely to be the most relevant factor in respect of the determination of the most convenient venue.
The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode can be summarised as follows:
·consider the section 60CC matters relevant;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
Consideration of section 60CC factors
In my view, this is a case which requires the appointment of an independent children’s lawyer. This is warranted for a number of reasons, which include the following:
·Serious allegations of family violence;
·The cultural background of the family; and
·The mutual allegations of parental deficiencies.
In addition, a family report is essential in a case such as this one. I am well aware that I do not have any assistance from either an independent children’s lawyer, who has a statutory obligation to advocate what he/she considers is the best outcome for the child and from a family report writer, who would have the advantage of being able to interview each of the children concerned and observe them with their parents.
If subsequently found to be verified, the complaints of family violence made by the mother against the father, are extremely serious. Her evidence is that she was exposed to potentially life threatening injuries whilst in (country omitted) by a person who treated her with callous disregard for her safety and feelings. In essence, it is her case that the father is a violent psychopath who represents the gravest risk to her personal safety.
The difficulty, with this assertion, is that it is currently not supported by any objective level of corroboration. Given the most serious allegations arose in (country omitted), this is not surprising. In these circumstances, it may never be possible for the court to be provided with records detailing the medical intervention concerning the mother and the two older children. In addition, it is likely to be problematic for any records kept by the (country omitted) authorities relating to complaints of violence to be produced in this country.
However, these difficulties do not absolve the court from its obligation to consider the mother’s personal safety and its implications for the wellbeing of the children. As indicated previously, the applicable legislation requires protective concerns to be given primacy over matters relating to paternal relationships, so far as children are concerned.
The evidence currently available to me, does however indicate that domestic violence workers, social workers at the mother’s School B, as well as teachers and staff at the children’s school took the mother’s complaints of being the victim of family violence very seriously indeed. In this context, arrangements were made for the mother and children to be placed in secure accommodation, the location of which was kept from the father.
However, at this stage, I have not been provided with any evidence from any of these individuals regarding their personal assessment of the potential level of threat facing the children and what factors they based this assessment on. In this context, I appreciate that the mother has not had a significant period of time to prepare her case.
Necessarily, in my view, given the degree of response provided by the various workers concerned, it is open to the court to infer that the level of risk was assessed by them as being a high one. In addition, it would seem to be the case that the school authorities were aware of some form of injury having been suffered by [X], which was noted within the context of the child behaving in an aggressive way in the school environment.
All of the allegations, made against him, are strenuously denied by the father. The interim domestic violence order, against him, was apparently made on an ex parte basis. He has however been charged with some criminal offences relating either to [X] or the mother, which are of a violent nature. Again, at this stage, I do not have any clear understanding of what is the evidence available to the police regarding both the issue of the interim intervention order and the charges against the father.
If the mother is successful in her interim application, it is likely the father will perceive the court has unfairly and prematurely adjudged him liable for behaviour which he has denied and about which he has had a limited opportunity to put matters in defence. I acknowledge that these types of issues are more readily determined at the final rather than the interim hearing stage. I also acknowledge that, in these circumstances, there is a risk that the father will feel that he has been unfairly subject to some form of stereotyping.
It is in this challenging context that I must assess the degree of risk, arising for the mother and the children concerned, of any interim orders which are made. In my view, it is telling that the domestic violence workers concerned who assisted the mother and children moving out of the Suburb 1 home, considered that the family would be objectively safe in the domestic violence accommodation selected by them in the suburbs of Adelaide.
Adelaide is a city of over 1,000,000 individuals. It occupies a large geographical domain. I presume that some thought was given to placing the mother and children in a facility, which was and far removed from Suburb 1 and so would not be readily accessible by the father. The mother has subsequently revealed she was placed in accommodation in Suburb 2, which is approximately twenty kilometres away – Suburb 1 being an inner suburb and Suburb 2 an outer suburb of Adelaide.
In these circumstances, in my view, it does not seem to be an unreasonable inference to draw that those who had assisted the mother in moving into the emergency accommodation in question considered that she and the children would be objectively safe there. However, I concede that I have not been provided with any evidence in this regard or been told what were the longer term plans held for the mother and the children in respect of this accommodation.
The evidence available to me indicates that it was the mother’s decision to relocate with the children from Adelaide to Sydney. She did so after she had been placed in the emergency accommodation concerned and after she had applied successfully for the police protection entailed in an interim domestic violence order. Her reasons for so doing include the following factors:
·She was fearful of inadvertently running into the father because he is employed as a (occupation omitted);
·She and the father are members of a small community, within Adelaide, who attend at Church for religious observances;
·As such, it was possible the father would become aware of her location through common ties in the (nationality omitted) community in Adelaide;
·She does not have confidence in the police to protect her, given her concern that the father has a friend in the Force;
·She did not personally find the accommodation provided for her to be particularly commodious;
·There is a larger (nationality omitted) community in Sydney from which she considered she would receive greater community support.
The father denies being employed as a (occupation omitted). He points to the fact that the mother is not in a position to assert that he had personally breached the interim intervention order. In this context, he refutes any suggestion that he procured the paternal grandfather to telephone the mother and, in any event, he points to the fact that the mother has not as yet provided what she alleges is the content of the relevant conversations.
My obligation is to assess the degree of risk arising for the children concerned and determine, in particular, whether the mother’s relocation of them to Sydney, in the circumstances then prevailing, was a proportionate response to the degree of risk arising, particularly given the risks of potentially interrupting a significant relationship for the children, for a reasonably lengthy period of time.
This issue too raises legal complex issues, arising in what must be characterised as a relocation case, namely the possibility of the father himself moving to Sydney to potentially preserve his relationship with the children, rather than compelling the mother, by some form of legal leger de main, to return to Adelaide, against her will.
In this context, it is to be noted that, although the father maintains it will be difficult, if not impossible, for him to move to Sydney, the fact remains he has lived in Adelaide for a fairly short time and has no strong familial ties in the city. In addition, he refutes any suggestion that he has employment in Adelaide and, although he is committed to the lease of his premises, this lease is unlikely to be for an indefinite period.
In U v U Hayne J said as follows:
“… it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.” [16]
[16] Ibid at 89,103
I am very well aware that, in the context of this abbreviated hearing, I must be cautious about making pre-emptive findings of fact. In addition, although the risk pertaining to the mother is to be objectively assessed, I am not in a position to disregard her subjective feelings and perceptions of her safety, in the emergency accommodation, in Suburb 2.
In particular, I bear in mind her non-English speaking background and her recent arrival in Australia. Given their refugee status, both parties must be regarded as vulnerable individuals. In all these circumstances, it is understandable that the mother would feel anxious and insecure, no matter where she was placed in Adelaide, particularly as the victim of very serious family violence.
At the same time, I must be aware of the dangers of blithely and uncritically accepting the mother’s categorisation of the father as a pathologically violent person, in my assessment of the risks confronting the mother, when she decided to settle in Sydney permanently, after initially deciding to visit there for the purpose of taking a holiday.
In my view, this concession, regarding her change of mind, weakens the gravity of her case and her level of justification for making such a significant move unilaterally of the father. For obvious reasons, this seems to be more indicative of personal preferences rather than protective concerns.
In purely objective terms, I consider that the mother and the children’s accommodation, in the emergency housing, following their departure from the family home in late September of 2017, provided adequate protection for them. It was only in mid-November that the mother decided to remain in Sydney, “out of fear of the father”.
However, the mother is unable to point to a significant occurrence, in the intervening period, which changed the objective level of safety of the emergency accommodation, at Suburb 2, from her perspective. The mother’s evidence is that she asked police if she could go to Sydney for a holiday and was told this would be acceptable.
She did not canvas with anyone else, including obviously the father, whether it would be equally acceptable for her to remain in Sydney, with the children permanently. This was likely to be, as indeed it has turned out to be, a far more problematic decision. In my view, this is a significant factor, which militates in favour of the mother and children returning to Adelaide, if at all possible.
The views of the children concerned, particularly [X], are not known to me. In the longer term, this is likely to be a significant consideration, particularly if it is established that [X] has been assaulted by his father. The views of the children and what is shaping those views is likely to become clearer following the involvement of an independent children’s lawyer and the engagement of a family report.
It would appear to be the case that the two older children have a reasonably well developed level of relationship with their father, given they lived in his sole care for a lengthy period prior to the arrival of the mother and [Z] in Australia. On the other hand, the evidence indicates that the mother has been [Z]’s primary provider of care. Given her tender years, she must be regarded as a vulnerable child.
It is the father’s case that the consequences for the children, of being separated from their father and other members of their paternal family, will be extremely detrimental for them. On any view, not only because of the serious allegations of family violence, the management of any form of relationship between the children and their father, will be extremely difficult to manage over the significant distance between Adelaide and Sydney.
Logistical issues loom large in this case. If, as an incident of the case remaining in the Adelaide registry of the court, the mother and children return to live in the Adelaide metropolitan area, the court is likely to appoint an independent children’s lawyer, funded by the Legal Services Commission of South Australia and investigate the possibility of the children spending some form of professionally supervised time, with their father at a Federally funded Children’s Contact Centre.
Subject to delays at the CCC, this could happen reasonably quickly and would at least enable the children to resume some form of relationship with their father in objectively entirely safe circumstances. In due course, it is likely that an independent assessment of the family would also be undertaken by a suitably qualified expert based in Adelaide, which would involve interviews with the children and an observed interaction with each of their parents. Such processes would begin the teasing out of the nature of the parties’ relationship with one another and the implications of this for the children concerned.
These interventions become significantly more difficult and may indeed become impossible, if parents are living in separate states. For obvious reasons, these difficulties are compounded when the parties concerned are in receipt of social security and necessarily are provided by the government with only sufficient income to provide for their immediate needs. Such individuals cannot travel easily between interstate locations.
Given his stance in the proceedings thus far, it appears to be the father’s position that the mother has elected to go and live in Sydney, for tactical reasons, in order to defeat his application to spend significant periods of time with the children, which will be impossible, if he remains in Adelaide and they remain in Sydney. In these circumstances, he contends that the children’s managed return to Adelaide, whilst the case is further investigated, provides the best outcome for them, at this stage.
In particular, such an outcome will not preclude the mother’s eventual relocation to Sydney, with the children, if this is determined to be in the children’s best interests, after there has been a full survey of all relevant evidence, including the potential for the father to move to Sydney, in tandem with the children. Necessarily, he contends that the mother and children will be safe in Adelaide, if this occurs.
The mother doubts her safety. In addition, it is her position that she has indisputably been the children’s sole primary provider of care since September of 2017 and was so since her arrival in Australia and largely before when the family lived in (country omitted). In these circumstances, she contends that her sense of psychological security must be a significant consideration for the court, which militates in favour of her being able to choose where she feels safe to live.
The mother speaks limited English. She is in receipt of social security payments. If compelled to return to Adelaide, more likely than not, she would be able to receive some assistance, either directly from government or some other non-government agency to assist her with emergency accommodation, in such an eventuality, particularly if given a reasonably lengthy period of time to prepare for the move back.
I acknowledge that she has sought such assistance in the past and is likely to be able to do so in future, notwithstanding any linguistic or cultural difficulties which she has. However, in my view, such a relocation would be very difficult and expensive for her, given her financial circumstances. It is not likely that the father would be either able or perhaps willing to assist her financially to return to Adelaide. Certainly, he has not made any offer in this regard.
Similarly, I accept that, for the father to move to Sydney, so that he can engage in court processes in that city, including an assessment of the family, will be very difficult for him to achieve logistically. In addition, if he remains resolute in his intention to remain in Adelaide and the children are living in Sydney, it will undoubtedly be the case that his relationship with them, which he currently characterises as a positive one, will be weakened.
In these circumstances, it is my view, that it is not the case that one party is the obviously more mobile one and so more readily able to relocate than the other. I accept that the father does not want to move to Sydney because he feels well settled in Adelaide. In addition, he would assert that, just as the mother was able to fund her unilateral move to Sydney, it should be equally feasible for her to fund her return to Adelaide.
Accordingly, as is readily apparent from these somewhat lengthy reasons for judgment, this is a case which presents no obvious solution and whatever occurs will be problematic, leaving one of the parties feeling hard done by and unheard.
In these circumstances, in my view, I must return to the issue of risk and, in this context, attempt to assess the potency of the violence as alleged by the mother. If the mother’s evidence is correct, the violence inflicted upon her can only be regarded as extremely potent and therefore dangerous.
It seems to me to be improbable that she would have concocted all the allegations of violence against her and thereafter has been able to disingenuously convince the domestic violence workers concerned of her fabrication, when she secured their help to leave the Suburb 1 home. In addition, this is inconsistent with the injury reported regarding [X].
Although Adelaide is a large conurbation, I accept that the (nationality omitted) community within it is small and closely interknit. Accordingly, I am not in a position to dismiss the mother’s concerns that, if she is to continue to attend Church with the children, it is likely the father will become aware of where she is living and this has heightened her feelings of insecurity in Adelaide.
In these circumstances, there can be no doubt that the mother personally will feel safer, both in a physical and psychological sense, if she is able to remain in Sydney, pending the outcome of the case. This is likely to be of assistance to the children given, at this stage, she is the children’s primary carer and in my view it would not be in their interests for this arrangement to be abruptly changed.
I am fortified in this view by the fact that the children have been in their mother’s sole care since late September of 2017, a period approaching nine months in duration and in Sydney for about six months. These are significant periods and must be regarded as relevant to issues of stability so far as interim care arrangements for the children are concerned.
At this juncture, given the serious allegations of family violence and the considerations contained in sections 60CC(2)(b) & (2A) of the Act, in my view, the court is not in a position to consider the children’s place of residence being transferred to the father or that the children spend anything other than rigorously supervised time with their father.
Accordingly, in my view, it would be both artificial and not in the children’s best interests for the court to proffer, to the mother, the choice of the children living with her, but only if this outcome occurred in Adelaide, but in order to compel the mother’s return to give effect to such an order, directed, in the alternative, that the children live with their father and spend time with their mother, pending final hearing.
The engineering of such a choice flows from an analysis of the court’s authority. The court jurisdiction extends to living arrangements for children. In generic terms, the court has no specific authority to prevent Ms Marden living wherever she wishes. Under the law of this country, she is to be regarded as a free agent, entitled, as of right, to live in the location of her preference.
In addition, the proffer of such a choice to her is likely to be regarded by her as profoundly unfair. In effect, if her evidence is ultimately shown to be accurate, she would have been compelled to live in a location unpalatable to her at the direction of a person who has been abusive to her.
The same considerations apply in respect of Mr Attwill. I cannot compel him to live in Sydney but he has a personal choice, if he wishes, to move to Sydney to be closer to the children. As Gummow & Callinan JJ pointed out in U v U:
“…maternity and paternity always have an impact upon the wishes and mobility of parents; obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement having been incurred.”[17]
[17] Ibid at 89,091
In these circumstances, having found that the issues of family violence are significant and these militate in favour of the children remaining in their mother’s care, it is necessary to consider the balance of convenience so far as the transfer of the proceedings is concerned.
It is likely to be somewhat easier for the father to relocate to Sydney from Adelaide than for the mother and children to relocate back to Adelaide. The children have been settled in their current arrangements for around six months. It will be more difficult for the mother to extricate them from their schools and find accommodation for a family of four in Adelaide than for the father, an individual adult, to find somewhere for himself in Sydney. However, in saying this, I appreciate the father is likely to consider it a sentiment that is deeply unfair to him in the circumstances that he did not precipitate the unilateral relocation of the children in the first place.
Conclusions
This is a difficult and contentious matter. There is no easy answer. I am not in a position to dismiss the very serious allegations of family violence, which arise in a complex cultural milieu. Whether I can form a reasonable belief that the father has engaged in family violence remains a moot point, in the face of his stringent denials.
However, given the diametrically opposing positions of the parties, I have no difficulty reaching the conclusion that it would not be appropriate for the presumption of equal shared parental responsibility to be applied at the interim stage.
In these circumstances it is necessary for me to analyse the various section 60CC factors applicable to reach the outcome, which I consider is in the best interests of the children concerned, whilst bearing in mind the inherent limitation of interim hearings.
In my view, the various factors favour a maintenance of the status quo – that is the children remain living with their mother in Sydney and, as a consequence, having no time with their father, given his residence in Adelaide. I reach this conclusion because of the issues of family violence; the fact that the children concerned have been in Sydney for a reasonable period of time; the practical difficulties of the mother and children returning to Adelaide; and because of the mother’s security fears in Adelaide.
I appreciate that the father will perceive that such an outcome is deeply unfair to him. However, I must remain focussed on the best interests of the children. At the end of the day, I consider it is likely to easier for the father to move to Sydney than for the mother and children to return to Adelaide, pending final hearing. In these circumstances, in my view, the balance of convenience favours the proceedings being transferred to the Sydney registry of the court. It will be for the court in Sydney, if it elects to do so, to appoint an independent children’s lawyer and make other necessary procedural orders.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 30 May 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Remedies
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