Avaras & Bria
[2022] FedCFamC2F 362
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Avaras & Bria [2022] FedCFamC2F 362
File number(s): ADC 568 of 2022 Judgment of: JUDGE DICKSON Date of judgment: 22 March 2022 Catchwords: FAMILY LAW – Parenting – unilateral relocation by mother with two children from South Australia to Western Australia – where father seeks for children’s return to the metropolitan area of Adelaide – where mother seeks to remain in Western Australia with the children – where the children have special needs – where there are mutual allegations of family violence - assessment of the parties’ competing positions – nature of an interim hearing – where it is in the best interests of the children to return to Adelaide pending Trial Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 69ZL Cases cited: C & S [1998] FamCA 66
Goode & Goode (2006) FLC 93-286
Salisbury & Hutchins [2009] FMCAfam 978
U v U (2002) FLC 93-112
Division: Division 2 Family Law Number of paragraphs: 73 Date of hearing: 22 March 2022 Place: Adelaide Counsel for the Applicant: Ms Fuda Solicitor for the Applicant: Belperio Clark Solicitor for the Respondent: Ms Dass for KDK Family Law ORDERS
ADC 568 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR AVARAS
Applicant
AND: MS BRIA
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
22 MARCH 2022
UPON NOTING THAT the proceedings were conducted by Microsoft Teams
THE COURT ORDERS DURING THE PERIOD OF THE ADJOURNMENT THAT:
1.No later than 5:00pm on 29 March 2021 the mother do return the children X born in 2016 and Y born in 2019 (‘the children’) to reside within the metropolitan area of Adelaide, South Australia.
2.In the event that the mother fails to comply with the order contained in paragraph 1, pursuant to Section 67Q of the Family Law Act 1975 (as amended), a Recovery Order do urgently issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the children X born in 2016 and Y born in 2019; and
(b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the children may be found; and
(c)to deliver the children to the father MR AVARAS born in 1984 at such a place as the father and the person effecting such recovery agree to be appropriate.
3.Liberty to the father to approach the Chambers of Judge Dickson in the event that the mother fails to comply with paragraph 1 herein.
4.In order to facilitate the return of the children to Adelaide in accordance with paragraph 1 herein:
(a)The mother shall be responsible for booking the flights on economy airfare only for herself and the children from Perth to Adelaide within the timeframe provided above; and
(b)The father shall bear the costs of the airfares for the mother and the children returning to South Australia; and
(c)The mother shall communicate with the father immediately upon ascertaining an appropriate economy airfare for herself and the children and confirm with the father the flight details including flight number and departure time, as soon as those details have been confirmed.
5.Prior to the children being returned to the metropolitan area of Adelaide, the father do vacate the former matrimonial home situate at B Street, Suburb C (‘the said B Street, Suburb C property’).
6.Upon children being returned the metropolitan area of Adelaide the mother have sole use and occupation of said B Street, Suburb C property NOTING the fathers undertaking that he will meet all mortgage repayments for the said property as and when they fall due.
7.The children live with the mother unless otherwise provided for herein.
8.The children do otherwise live with the father:
(a)In Week 1, from 3:30pm Friday to 5:00pm Saturday, commencing 1 April 2022 and each alternate week thereafter; and
(b)In Week 2, from 5:00pm Saturday to 5:00pm Sunday, commencing 8 April 2022 and each alternate week thereafter; and
(c)Each Wednesday from 4:00pm to 7:00pm; and
(d)At such other times as agreed between the parties in writing; and
(e)By skype, FaceTime or some other form of electronic communication on one occasion each week at times to be agreed between the parties.
9.Unless otherwise agreed between parties, any handovers not taking place at D School occur at said B Street, Suburb C property between the parties only.
10.Without admission, parties be restrained and injunctions be granted each of them from:
(a)Abusing, denigrating, assaulting, harassing or molesting the other;
(b)Entering the property otherwise occupied by the other, without the prior written consent having first been obtained;
(c)Changing the children’s enrolment from the D School;
(d)Changing the children’s principal place of residence from the metropolitan area of Adelaide.
11.The parties do implement and facilitate the “Appclose” parenting app for the purposes of their mutual communication with such communication to be directed to the welfare and arrangements for the children and compliance with any order made herein.
12.The mother have leave to file and serve an Amending Initiating Application with respect to financial matters within 28 days.
13.The father do file and serve an amended Initiating Application, Financial Statement and Affidavit directed to financial matters within a further 28 days.
14.Pursuant to s 62G (3A) & (3B) of the Family Law Act 1975 (Cth), the parties and the children X born in 2016 and Y born in 2019 (the children) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
15.Part 1 of the event will occur by video, using Microsoft Teams, on 19 July 2022 with:
(a)the Applicant to attend at 9:00am;
(b)the Respondent to attend at 10:30am; and
(c)Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
16.Part 2 of the event will occur in person at the Adelaide Registry at 3 Angas Street, Adelaide at 9:00am on 21 July 2022. Specific details regarding the attendance of the parties and the children on this date will be provided to the parties in Part 1 of the event.
17.Each party will do all things necessary to ensure the children attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
18.The parties and the children shall continue to attend at such times, dates and places as the Court Child Expert may advise.
19.Not later than 4:00pm on 29 March 2022 the parties must provide their contact telephone numbers and email addresses to [email protected].
20.Pursuant to order 14 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(d)the impact of the issues/dispute before the Court on the children;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the children.
21.Upon completion, the Child Impact Report shall be provided to the Court for release to the parties, including by way of order made in Chambers.
22.The Court Child Expert will be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)Information provided to the Court by the respective Family Law Information Sharing Officers from SAPOL and the Department of Child Protection.
23.The proceedings be adjourned for directions to 10 August 2022 at 9:30am by telephone.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Avaras & Bria has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex tempore reasons settled from transcript)JUDGE DICKSON:
INTRODUCTION
The reasons for judgment in this matter were delivered orally following the hearing between the parties concerned. These reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
These reasons are provided in short form pursuant to section 69ZL of the Family Law Act1975 (Cth) (‘the Act’), which provides that a Court may give reasons in short form for a decision that it makes in relation to an interim parenting order.[1]
[1] Family Law Act 1975 (Cth) s 69ZL.
BACKGROUND
These proceedings come before the Court by way of an Initiating Application filed by the father on 17 February 2022. The parents in this case are Mr Avaras (‘the father’), and Ms Bria, who is the mother (‘the mother’).
The father was born in 1984 and the mother was born in 1989. The parties commenced a relationship in or about July 2019 and separated for the final time on 6 February 2022. The parties have two children, X born in 2016, currently aged five years, and Y born in 2019, currently aged three years (‘the children’).
The father currently resides in the former matrimonial home at B Street, Suburb C in the State of South Australia. The mother is currently residing with members of her family in a property situate at E Street, Suburb F in the State of Western Australia.
The father’s application filed on 17 February 2022 was listed before me for urgent directions on 22 February 2022. On that occasion, Mr Praolini of counsel appeared on behalf of the father and the mother appeared unrepresented. Orders were made by the Court setting the matter down for argument on 22 March 2022 at 10:00am and further orders were made for the mother to file and serve her answering documents.
During the period of the adjournment, the mother was to facilitate the children communicating with the father by way of FaceTime, Skype or some other form of electronic communication on no less than two occasions per week at times to be agreed between the parties.
PARTIES COMPETING APPLICATIONS
The father’s Initiating Application filed on 17 February 2022 seeks interim orders, inter alia, as follows:
3. Forthwith upon the making of this Order, the mother deliver up the children X born in 2016 and Y born in 2019 to the father.
4. In the event the mother fails to deliver the children up to the father pursuant to the preceding paragraph within twenty-four (24) hours, a recovery is issued…
…
13. Upon the children’s return to the father’s care, the children live with the father and spend time with the mother as follows:
13.1 Each alternate Friday from the conclusion of school or (3:00 pm if a non-school day) until the commencement of school Tuesday (or 9:00 am if a non-school day).
13.2 Each intervening Tuesday from the conclusion of school (or 3:00pm if a non-school day) to the commencement of school Wednesday.
13.3 At such further or other times as agreed between the parties in writing.[2]
[2] See father’s Initiating Application filed 17 February 2022.
The father further seeks orders that the parties participate in a Child Impact Report with a Court Child Expert and that the parties enrol and complete the Kids Are First post-separation parenting program.
The mother complied with the orders for the filing of responding documents. The mother’s Response to Initiating Application filed on 15 March 2022 seeks interim orders, inter alia, as follows:
(1)That the children live with the mother;
(2)That the father be restrained from removing the children from the mother’s care;
(3)That in the event that the father removes the children from the mother’s care that a recovery order do issue for their return;
(4)That the parties participate in a Child Impact Report process and also attend and complete the Kids Are First program.[3]
[3] See mother’s Response to Initiating Application filed 15 March 2022.
By way of submission this day the mother’s counsel, Ms Dass, has confirmed that the mother’s proposal with respect to time spending in the event that the mother remains living in Western Australia, is to promote time spending on three occasions per week by way of video calls or some other form of electronic communication and that the father spent supervised time at a Contact Centre in Perth. No information has been provided to the Court in relation to the availability, cost or arrangements for any time spending in Perth through a Contact Centre in accordance with the mother’s proposal.
In the alternative, the mother seeks an order that in the event that she was directed to return the children’s place of residence to South Australia, that the father spend supervised time either with a private supervisor or through a Children’s Contact Centre.
The mother has also introduced by way of her final orders sought in her Response to Initiating Application orders in relation to property settlement. In due course, I will make directions for the filing of responding documents by the father and a further order giving the mother leave to amend her final orders sought in relation to property settlement, given the Court’s view of paragraph 8 of her final orders as to final orders for property settlement are deficient.
HEARING ON 22 MARCH 2022
For the purposes of today’s argument which proceeded before me, I have had regard to the following material that has been relied upon by the father:
(1)Initiating Application filed on 17 February 2022;
(2)Parenting Questionnaire filed 11 February 2022;
(3)Affidavit filed 11 February 2022;
(4)Affidavit filed 18 March 2022;
(5)Notice of Child Abuse, Family Violence or Risk filed 11 February 2022;
(6)Genuine Steps Certificate filed 11 February 2022.
On behalf of the mother I have had regard to the following material before me for the purposes of this argument:
(1)Response to Initiating Application filed 15 March 2022;
(2)Parenting Questionnaire filed on 15 March 2022;
(3)Affidavit filed 15 March 2022;
(4)Notice of Child Abuse, Family Violence or Risk filed on 15 March 2022; and
(5)Genuine Steps Certificate filed on 15 March 2022.
I note that the mother has also filed further affidavits and material which are either a repeat of the mother’s first affidavit filed on 15 March 2022 or are directed to the issue of property settlement and are not relevant for the purposes of today’s hearing.
By way of oral submissions, Ms Fuda also made oral applications on behalf of the father as follows:
(1)That the parties utilise a parenting app called “AppClose” for the purposes of their communication;
(2)That the children be enrolled at and attend at the D School and an injunction be granted restraining the parties from removing the children from the said school.
By way of submissions which have unfolded during the course of the argument, the father has also conceded through his counsel a proposal that in the event that the mother is ordered to return the children’s primary place of residence to the State of South Australia, then the mother and the children may have occupation of the former matrimonial home situate at B Street, Suburb C (‘the B Street, Suburb C property’) for a period of three months following the children’s return and the father undertakes to meet the mortgage repayments for a period of three months only following on from the mother’s return.
For her part, the mother’s counsel, Ms Dass, made submissions that in the event that the mother is ordered to return the children’s primary place of residence to South Australia, that the mother and children be able to reside in the B Street, Suburb C property indefinitely, that the father be restrained from attending at the home, that the father meet all mortgage payments and outgoings for the property and that there be no quarantining of the sole use and occupation period for three months or any period, for that matter, pending Trial.
In addition, the mother further proposed that the father spend time on a supervised basis, again, without any specific detail being provided to the Court as to how such arrangement would be implemented.
I turn now to the parties’ affidavit materials filed in support of their respective applications. The father’s affidavit filed on 11 February 2022 deposes that his application is filed urgently in circumstances where on 6 February 2022 the mother flew with the children to Western Australia and indicated to the father that she would not return. The father deposes that on 5 February 2022 he had become aware that the mother had purchased three plane tickets to Perth through Afterpay and the mother had then advised him, upon questioning, that she wished to separate permanently and to reside with the children in Western Australia where the mother has family.
The discussions between the parties on 5 February 2022 came in the background of ongoing disputation and unhappiness between the parties, which, as submitted by Ms Dass, had resulted in each of the parties engaging in behaviour whereby they supervised or monitored each other’s mobile telephones and where each of the parties seemed to regard each other, from an objective position, of high suspicion. Indeed, the father had attended at the Suburb F Police Station on 2 February 2022 to make a report in relation to what had been occurring in the home and the mother’s announcement that she intended to separate and to move to Western Australia.
On 6 February 2022, the father drove the mother and the children to the airport. For reasons that are yet to be fully explored, but no doubt ultimately will be, the father facilitated the mother and the children travelling to the Adelaide Airport from the former matrimonial home at B Street, Suburb C. The father says that he did so because the mother threatened to involve the police and he was “afraid and felt that I was being placed under duress”.[4]
[4] See father’s Affidavit filed 11 February 2022 at [25].
Again, for reasons that appear at odds with the father’s ultimate position, he deposes to having driven the mother to the airport with the children to:
…maintain a harmonious environment for the children in line with what the counsellor and I had discussed.[5]
[5] Ibid.
The father then complied with the mother’s request and, as I say, delivered the mother and children to the Adelaide Airport. It was not long, however, before the father had a change of heart and the father then took steps by way of legal advice and other inquiries with external agencies seeking to have the children returned to Adelaide. His application was filed promptly on 11 February 2022 some five days after the mother and children had departed South Australia.
In his affidavit of 11 February 2022 the father deposes to the following matters as justifying an urgent listing of his application and reasons underpinning his application for primary care. The father deposes that both children have medical conditions which he, as a result of his specialist training in health care, has been responsible for overseeing. The father deposes to being the person primarily responsible for administering the children’s medications and taking the children to their appointments. The father complains that the mother’s efforts in terms of supporting the children in relation to their medical needs are “negligible”.[6]
[6] Ibid [36].
The father then sets out in some detail, which I will not repeat for the purposes of these reasons, the children’s special needs from paragraphs 37 until 47 of the said affidavit. Attached to the father’s affidavit filed on 18 March 2022 is a document entitled “Schedule of the Children’s Upcoming Medical Appointments”, which sets out the appointments that each of the children have with various medical professionals between March and August 2022. The father says this supports his contention that the children should be returned to South Australia where they can then be treated by their treating medical practitioners and specialists, who are familiar with their medical conditions and respective health.
In addition to those matters, the father alleges that because the mother does not have a drivers licence, it is important that they be returned to Adelaide so that he can facilitate the children attending at their specialist appointments. The father deposes that X had been enrolled at D School, although I note that the child’s attendance at that school for the purposes of reception must have only been for a matter of some three days or so before the mother departed for Western Australia on 6 February 2022. The father deposes to the parties engaging in frequent verbal disagreements, sometimes occurring in the presence of the children, and refers to the fact that the parties and, in this particular instance, the mother denigrating him in calling him names such as “narcissistic arsehole”.[7]
[7] Ibid [57].
The father alleges that the mother suffers from anxiety and depression, which is conceded by the mother in submissions this day. The mother, however, says that her mental health is well regulated and under control. The father deposes that in 2013 the mother attempted suicide following a verbal disagreement, but subsequently the mother’s condition appears to have stabilised before the father raising this as a reason why the children should be placed in his primary care.[8]
[8] Ibid [62].
The background to the parties’ dysfunctional relationship had resulted in an earlier separation between the parties in 2018 when the mother had travelled to Perth with X who, at that time, was only 17 months of age. The parties subsequently reconciled and the mother and X returned to South Australia.[9]
[9] Ibid [68]-[73].
Since returning to South Australia, there is no dispute that the father has been the primary breadwinner for this family and that the mother has been the person who has remained at home caring for the children, albeit that the father complains that the mother has discharged this responsibility inadequately and to the detriment of the children. I note, however, that notwithstanding those complaints, the father is employed in a full-time capacity with Employer G as a health care worker, and works Monday, Tuesday, Thursday and Friday of each week between the hours of 6:30 am and 2:30 pm, so up to 30 hours each week. The father also has a 15 to 20 minute commute each way from the property at B Street, Suburb C to his place of employment.
Finally, by way of risk factors, the father deposes in his affidavit of 11 February 2022 allegations that the mother consumes marijuana and, other than that, that the mother turns to alcohol when she is upset.[10] The father says that he does not pose a risk to the children, has no criminal history and no prior involvement with the police.[11]
[10] Ibid [84]-[85].
[11] Ibid [80].
Before turning to the mother’s affidavit material, I refer now to the father’s affidavit in reply filed on 18 March 2022. In that affidavit the father denies the mother’s allegations of family violence or psychological abuse. The father denies engaging in threatening comments or repeated derogatory taunts. The father denies withholding the mother’s financial autonomy or withholding financial support. The father denies what the mother describes as “deprivation of liberty” and again confirms that in his view the children should be returned to his primary care as a consequence of their special needs and his training as a health care worker.[12]
[12] See father’s Affidavit filed 18 March 2022 [6]-[41] generally.
Finally, the father attaches to his affidavit a series of messages which took place between the parties by way of electronic communication in February 2022. The communication is put before the Court to demonstrate that the mother had offered to return to South Australia with the children on the basis that the father vacate the home and that she be able to reside there indefinitely. The mother also refers to:
I’m agreeing to 50 /50, but if, and only I go back to the house without you there until I find housing and a job.
You have somewhere else to stay.[13]
[13] Ibid Annexure 4.
The father informs the mother that this material would be given to his solicitor and placed before the Court, which, of course, the father has promptly done. The father’s offer for the mother to return to reside to live in the former matrimonial home through his counsel this day reflects the communications and discussions between the parties as set out in Annexure 4 to the father’s affidavit filed on 18 March 2022.
Turning now to the mother’s affidavit filed on 15 March 2022, the mother deposes in this affidavit to having remained in a desperately unhappy relationship for a period far longer than she had wanted to, in circumstances where she says she was subjected to psychological abuse and what would be colloquially known as coercive and controlling family violence. The mother alleges that the father comes from a traditional Country H “misogynistic style home where women are treated below men”.[14]
[14] See mother’s Affidavit filed 15 March 2022 at [33].
The mother deposes that it was as a consequence of living in this environment, together with external pressures applied upon her by the father and his parents, that her mental health was impacted and that it was very difficult for her to function as a fully independent parent in circumstances where the father and, by extension, members of his family controlled every aspect of her life, including her financial autonomy and her parenting of the children.
The mother sets out in her affidavit that the father does not properly look after the children, in that the children are not fed correctly, that the parties relied upon a processed diet and that the parties and the children consequently suffered from health complaints, including obesity. The mother attaches to her affidavit a document which was said to be executed by the parties on 1 February 2022, which I would understand was to reflect the fact that the father had agreed to the mother returning to Western Australia. I note, however, that this document referred to the mother only travelling to Perth for a period of one month in order to be with her family and to find a job and housing and that she would return to South Australia for the sole purpose to pick up the children and “possibly return to Western Australia with them”.[15]
[15] Ibid Annexure 1.
As things transpired, the mother and children, in fact, departed this State together and the mother had no need to return to South Australia for their collection.
In short, the mother says that she needs to stay in Western Australia to be able to receive the support of her extended family and to remain free of the father’s overbearing and domineering attitude, and it is the mother’s position that the children’s best interests would be served by having supervised time with their father either in South Australia or in Western Australia if her application is upheld.
APPLICABLE LEGAL PRINCIPLES
I turn now to the applicable legal principles that apply to these applications. The legal principles that are to be applied in interim parenting applications have been well articulated in the Full Court decision of Goode & Goode.[16]
[16] Goode & Goode (2006) FLC 93-286.
The primary object in all parenting applications is to consider the best interests of the children. Section 60CA of the Act directs the Court to consider the best interests of the children as the paramount consideration as both an interim and final stage of the proceedings.[17]
[17] Family Law Act 1975 (Cth) s 60CA.
The distinction, of course, is that interim hearings do not determine long-term arrangements for the care of the child, whereas final proceedings do. It is frequently the case, as I observe in this one, that the Court is called upon to make interim decisions against a background of urgency and in circumstances where the parties have completely opposing views as to what arrangements will serve their children’s best interests.
In this case, of course, the parties have diametrically opposing views involving the children which will involve them living hundreds of kilometres away from the other parent if the mother’s application was acceded to at this time.
The aims and principles of the Act as set out in section 60B, which deal with children, direct me to emphasise the desirability of the children’s parents being as closely involved as possible in their children’s lives, both in terms of the exercise of parental responsibility and the time that they each spend with their children commensurate with the need to protect the children from physical and psychological harm or from being subjected to abuse, neglect or family violence.[18]
[18] Ibid s 60B.
Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child in accordance with section 61DA of the Act. The presumption of equal shared parental responsibility will be 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.[19] This Court has a discretion not to apply the presumption at the interim stage if circumstances exist, such as abuse of the child or family violence which make it inappropriate for parental responsibility to be applied.[20] This subsection is important, particularly in cases where there are untested allegations of child abuse or family violence, as I observe are evident in this case.
[19] Ibid s 61DA(2)(a)-(b).
[20] Ibid s 61DA(3).
On the facts before me, there are allegations of family violence made by each of the parties against the other. Neither party has sought on an interim basis an order for equal shared parental responsibility. Accordingly, in these circumstances, I decline to apply the presumption of equal shared parental responsibility, given the allegations made mutually of family violence and because at this stage of the proceedings, I am not satisfied that it would be in the children’s best interests for such order to be made on an interim basis. The allegations of untested family violence and the uncertainty with respect to how the parents will be able to manage the co-parenting of these children, subject, of course, to the mother’s living arrangements in the longer term, make the prospect of an order for equal shared parental responsibility insurmountable at this stage.
In considering the children’s best interests, I am then directed to consider section 60CC of the Act and a number of considerations both described as primary and additional considerations. The Act prescribes for two primary considerations. Firstly, the need to ensure that children have a meaningful relationship with each of their parents and, secondly, the need to ensure that the children are protected from harm both physical and psychological which may arise if they are exposed to any kind of abuse, neglect or family violence.[21]
[21] Ibid s 60CC(2).
In this case, I am satisfied at this interim stage and on the material available to me that the children are not likely to be subjected personally to physical or psychological harm arising from abuse, neglect, and family violence. I say this because there are no allegations, as I read the material, made by either party against the other in relation to an allegation of direct personal violence against the children by either parent. The parties allege, however, that the children have been present during mutual arguments, which no doubt were distressing to the children, and where both parties have engaged in name calling and derogatory taunts.
The mother’s allegations with respect to family violence are much more nuanced and refer to coercive and controlling family violence, which may not have been evident to the children, given their very young ages. However, as I say, at this early juncture I am not satisfied either to apply the presumption, nor am I satisfied that the children are at risk with respect to family violence directly by either of their parents.
I do not dismiss, however, the concerns raised by each of the parents at this early stage where allegations are untested. I do not elevate the allegations of family violence to those overseeing the right of the children to have a meaningful relationship with each of their parents. A meaningful relationship will be almost impossible if the children remain in Western Australia pending Trial.
The additional considerations that I must consider are set out in section 60CC(3) of the Act and are numerous. Again, the application of those considerations will depend on the particular circumstance of each case concerned. The primary considerations are to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation in determining the outcome of a case.
In this case, the need to ensure that the children have a meaningful relationship with each of their parents takes on a particular importance at this interim stage, given that if the mother’s application is acceded to, the parties will be residing hundreds of kilometres from each other and the children remain very young at five and three years of age respectively.
The Full Court has directed that it is necessary for the Court to consider all of the section 60CC factors applicable and, if possible, to make findings about them. The decision in Goode & Goode (supra), however, predates section 69ZL, which permits the Court to give short form reasons in interim parenting matters. For the purposes of these reasons, I confirm that I have had regard to the relevant sections of section 60CC(3) of the Act as they relate to these parties and I bring them to account in terms of the orders that I will shortly pronounce.
Given the structure and tenor of Part VII of the Act, cases involving one parent wishing to move a major distance away from the other parent concerned raise significant issues for the Court and the parties, particularly at this interim stage. As was observed by the Court in the decision of Salisbury & Hutchins[22] cases involving relocation throw up competing principles which are difficult to reconcile. In the decision of Salisbury & Hutchins the Court describes as follows:
On the one hand, one of the purposes of the Family Law legislation is to provide former partners with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children, in the now changed circumstances following the end of the marital or de facto relationship between them. There is no principle of law that requires separated parents to live indefinitely in close proximity to another.[23]
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both of his or her parents, regardless of the fact that the parents concerned chose not to live together. It has been said that relocation cases need careful analysis.[24]
Accordingly, it is usually considered preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocations may have potential serious ramifications for the children concerned, especially when those children are young, in terms of their ongoing parental relationships.[25]
In addition, necessarily, each case involving a proposal to remove a child from a particular location in which he or she lives is different and as such requires an individual analysis and response. The tyranny of distance develops by degrees.[26]
[22] Salisbury & Hutchins [2009] FMCAfam 978 (per Brown J).
[23] Ibid [49].
[24] Ibid [50].
[25] Ibid [51].
[26] Ibid [52].
The Court went on to observe as follows:
For obvious reasons, it is likely to be more difficult for a child to maintain a meaningful relationship with a parent. if an international relocation is involved or the move involved is to a far distant part of Australia… it has been pointed out that it is artificial, in the extreme, to determine whether a case involves issues of relocation on the basis of distance alone. Rather, what is important is the consequences of the move or proposed move for any child affected by it.[27]
[27] Ibid [53]-[54].
In addition, there may be other considerations that need to be brought to account, including the capacity of the family and, in particular, the children to cope with long distance travel arrangements, their financial situation and, of course, other extenuating circumstances, including the involvement of family members residing interstate. In this particular case, the mother would argue the desire by her to live as a free citizen of this country close to members of her extended family in circumstances where there appears to be, on the facts, a position that the mother has long complained of feeling unsupported in Adelaide and has made attempts to move back to Western Australia previously.
In Salisbury & Hutchins, the Court further noted the following:
Although the shared parenting legislation has added emphasis to the principle that children benefit in their emotional and social development, by having as extensive a relationship as possible with both their parents, there is no principle of law that the parents of children are required to live indefinitely close to one another, in order to ensure that such an optimal outcome is achieved.[28]
[28] Ibid [61].
EVALUATION
In this case, as in all cases concerning the best interests of the children, the Court is directed to consider what is in the best interests of the children as the paramount consideration pending Trial. I have come to the very difficult decision in this case pending Trial that it is appropriate for the children to return to reside in the metropolitan area of Adelaide. I do not ignore and nor can I, nor should I, the mother’s entitlement to freedom of movement. However, given the limited evidence available to the Court at this interim stage, I am compelled to exercise considerable caution in relation to the mother’s unilateral relocation in circumstances where the evidence before me is provisional and untested.
As described by the Full Court in C & S:[29]
It is preferable that issues relating to relocation should not be determined against a background of recent development which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.[30]
[29] C & S [1998] FamCA 66 (per Ellis, Lindenmayer & Warnick JJ).
[30] Ibid 9.
The difficulty with the mother’s position at this early juncture is that the current position has been brought about by a decision made unilaterally by the mother to travel to Western Australia. Whilst the father appears to have acquiesced with the mother’s initial request, he certainly brought about steps very promptly to have the children returned to South Australia and, no doubt, the father’s actions in driving the mother and the children to the airport will be the subject of cross-examination in rigorous terms at Trial.
As I say, this has been a difficult decision. The Court is sympathetic to the mother’s complaint that she felt isolated living in Adelaide away from her extended family members and without their support. This is not a criticism of the father, because the father, of course, provided the financial support and income for the family. However, at this interim stage, I am not prepared to condone the mother’s decision to relocate unilaterally with the children to Western Australia.
Outcomes at Trial with respect to relocation can be very different to those on an interim basis. The decision of U & U[31] is a seminal decision whereby the Court considered the capacity of another parent to move with the parent wishing to relocate so as to ensure an optimal and ongoing relationship with the children. No doubt, at Trial all possibilities with respect to the living arrangements for these children and the parents will be canvassed at final hearing. However, for the time being it is the Court’s view that the children should be returned to the metropolitan area of Adelaide.
[31] U v U (2002) FLC 93-112.
With respect to the interim arrangements for the children, pending the intervention of a Child Impact Report, which appears to be an agreed position of the parties by way of their respective applications, I propose to maintain the arrangement whereby the children will remain living in the primary care of the mother during the period of the adjournment. It is evident on the material before me that the father has worked up to 30 hours per week. Again, as I say, that is not a criticism of the father, but simply evidence of the fact that the mother was at home with the children and the father was engaged in employment outside of the home.
I do not consider, however ,that the mother’s proposals for supervised time at a Contact Centre or elsewhere are warranted on the facts of this case. The disputes between the parties, as distressing as they may have been for each of the mother and the father, do not equate to the children needing to be supervised in the care of each of their parents. I have approached the matter on the basis of each of the parties putting their respective positions at the highest possible end of any proposed parenting applications with the expectation that the Court’s judicial sword may fall somewhere short of their respective positions and somewhere at a point that either party could live with during the period of the adjournment.
I consider it appropriate, given the ages of the children and pending the intervention of a Court Child Expert for the children to spend one overnight period with their father each week and on another occasion for the purpose of a meal, to enable the children to spend regular time with their father pending further information being put before the Court from a Court Child Expert.
I propose in these circumstances where the father has offered to meet the costs of the children’s flights back to Adelaide to exercise my discretion to include the costs of the mother’s flights. I do this so as to avoid there being any delay or argument that the mother is unable to afford her own airfares back to South Australia, which, of course, will then delay the children being returned as their accompanying parent.
Given that the father is meeting the cost of those flights and given that the father will be vacating the former matrimonial home upon the mother’s return, I propose to make an order that the children be returned to Adelaide no later than 29 March 2021.
I propose directing that the mother book the flights on an economy airfare with such flights to be paid for by the father, and the father to reimburse the mother should that be necessary, not only for the children’s flights, but also for the mother’s flights.
I will propose regular time spending on an overnight basis each week with handovers to occur, unless otherwise agreed, at the B Street, Suburb C property.
During the period of the adjournment, I will make without admission a series of mutual injunctive orders restraining the parties from engaging in the sort of behaviour of which they complained about in their material and further directing, in effect, for the children to attend back at the D School.
The Child Impact Report will take place on the first available appointments, which are the 19th and 21st days of July and I will make further directions for the parties to file material with respect to the moving forward of their financial applications.
CONCLUSION
For all of the above reasons, I make the orders at the commencement of these reasons to operate during the period of the adjournment.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 25 March 2022
0
2
0