BARDA & TEAK

[2018] FCCA 2401

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARDA & TEAK [2018] FCCA 2401

Catchwords:
FAMILY LAW – Child aged almost five years of age – child has not interacted with father for approximately two years – mother has unilaterally relocated child interstate – meaningful level of relationship with each parent – freedom of movement – nature of interim hearing – additional considerations – court’s duty to deliver individual justice for the child affected – court has discretion to not apply presumption of equal shared parental responsibility in interim matters – best interests.

Legislation:
Family Law Act 1975, ss.4,60CA; 60B; 60CC; 60I; 61DA

Cases cited:
Zahawi & Rayne [2016] FamCAFC90
U v U (2002) FLC 93-112
AMS v AIF [1999] HCA 26
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Morgan & Miles [2007] FamCA 1230
Adamson & Adamson (2014) FLC 93-622
Sampson & Hartnett(No 10) (2007) FLC 93-350
Mazorski v Albright (2007) 37 FamLR 518
Goode & Goode (2006) FLC 93-286

Applicant: MR BARDA

Respondent: MS TEAK

File Number: ADC 1512 of 2018

Judgment of: Judge Brown

Hearing date: 24 August 2018

Date of Last Submission: 24 August 2018

Delivered at: Adelaide

Delivered on: 31 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Charman

Solicitors for the Applicant: Ian Charman & Associates

Counsel for the Respondent: Ms Kari

Solicitors for the Respondent: Jordan & Fowler

ORDERS

UNTIL FURTHER OR OTHER ORDER:

1. The child [X] born 2013 live with the mother.

2. The mother be authorised by this order to live with the child in the state of Queensland.

3. The child spend time with the father at times and on conditions as may be agreed between the parties from time to time.

4. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a family consultant as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released as soon as possible.

5. The family assessment to deal with the following matters:

   (a)to include interviews with the parties, the child and relevant family members;

   (b)observed interaction between the child and the parties;

   (c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   (d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

   (e)any other matters that the family assessor considers important to the welfare or best interests of the said child.

6. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

7. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

8. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

   (a)a Children’s Court;

   (b)a child protection authority;

   (c)a State or Territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference

   NOTING:

   A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

   B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court

9. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

10. The Report be released to the parties on or before 26 November 2018.

11. The proceedings be listed for further mention following the release of the Report on 6 December 2018 at 9:30am on which occasion consideration will be given to any further orders including whether the proceedings should be transferred to the Registry of the Court most proximate to the mother’s residence in Queensland.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1512 of 2018

MR BARDA

Applicant

And

MS TEAK

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a case concerned with what is conceded to be a unilateral and interstate relocation of a child, a significant distance away from her father, in circumstances, in which, for all intents and purposes, it will be close to impossible for the child to have any form of relationship with each of her parents, unless one of two things happens:

   ·The father voluntarily moves from Adelaide to Queensland, to be closer to the child, so that he can begin to re-form a bond with her, which has almost certainly been severed through the effluxion of time; or

   ·The mother is compelled, through the mechanism of a court order, to live in Adelaide, with the child, which she is disinclined to do and which she asserts is unfeasible because she does not have the financial wherewithal to return.

2. The child concerned is [X] born 2013.  She is four years and eight months of age at present.  Her father is Mr Barda, who lives in Adelaide, where he has recently gained employment as a (occupation omitted). 

3. In his application filed 20 April 2018, Mr Barda does not seek an order that [X] be immediately placed in his care.  Rather, he seeks to spend gradual periods of time with her and eventually share her care, on a week about basis, with [X]’s mother, Ms Teak.  Necessarily, for all sorts of reasons which I will set out in due course, such an outcome must be some time off.

4. Ms Teak and [X] have lived in Brisbane since December 2017, with the mother’s grandparents and her child from an earlier relationship, [A], who is ten.  Mr Barda does not seek any orders in respect of [A], although it is Ms Teak’s case that [A] regards him as his only father figure. 

5. It is the mother’s case that she has always been [X]’s primary carer and she left Adelaide to escape amphetamine abuse and reconnect with her grandparents, who have supported her throughout her life, which has been a difficult one.  In these circumstances, it is her case that she will be better placed to parent [X] if she is in a situation where she is supported by her family and away from the influence of former associates who may pressure her to resume amphetamine use.

6. It is also Ms Teak’s case that she is bankrupt.  She asserts that her bankruptcy resulted from debts related to the period of her relationship with Mr Barda, whom she alleges was involved in the illicit drug trade, both during and after the parties’ relationship. 

7. Currently, Ms Teak is working as a (occupation omitted), but it is her case that her income from this employment is modest in the sense that it does not cover her complete living expenses and certainly would not fund a return to live in Adelaide, as she would have to rent accommodation for herself there.  At present, she has deposed that she is living with her grandparents, to whom she pays nominal board.  It is her case that they support her and enable her to make ends meet. 

8. Otherwise, it is Ms Teak’s case that she has little, if any, financial, emotional and practical support available to her in Adelaide, particularly given that she was born in Queensland and only lived in Adelaide for around eight years, which was a period of drug addiction and emotional dislocation for her. 

9. It is essentially her case that her life was in such a state of disarray, in 2016/2017 that she had no real alternative other than to escape Adelaide, with [A] and [X], as this was the only means through which she could get her life, including as a parent, back on track.  A necessary corollary of this assertion is that it would extremely detrimental, for [X], if her primary carer is compelled to return to an environment which is not conducive to her safety.

10. On the other hand, it is Mr Barda’s case that he was a very involved parent, in the early years of [X]’s life, both before and after the parties’ separation, which he places at some time in 2014.  He categorises himself as an occasional user of methamphetamines, in the past and asserts that he is now abstinent.  It is his case that it was the mother, who introduced him to methamphetamines, rather than vice versa. 

11. He does however concede that he has not physically interacted with [X] since Easter of 2016.  However, it is his case that this was directly as a consequence of the mother concealing herself and the child from him and then resisting his attempts to involve her in some form of mediated outcome focussed on [X]’s best interests, which included the resumption of some form of relationship with him.

12. The mother asserts that the last time the father physically interacted with [X] was in fact in January of 2016, when she and Mr Barda met in a hotel room, in Adelaide, to smoke methamphetamine together.  It is her case that the realisation of what she was doing, with her life, at this time, was a serious wake up call to her and made her realise that she had to change her life, which involved re-connecting with her grandparents.

13. Mr Barda agrees that the drug smoking incident, at the hotel room in January 2016, did occur.  However, he asserts that it was the mother who brought the methamphetamines rather than him.  He asserts that he did in fact arrange the room, through a mate, who worked at the hotel but only as a means of being able to spend some time with [X].  He minimises his conduct, on this occasion, deposing that [X] was asleep when he and Ms Teak consumed the drugs.[1]

    [1]  See father’s affidavit filed 20 August 2018 at [31]

14. Accordingly, the parties agree that Mr Barda has not seen [X] for a period of somewhere between 28 and 32 months.  On my calculations, this is around half the period of her life to date.  On any view, it is a significant period of time.  During this period, [X] has been in the care of the mother. 

15. I have not been provided with any evidence from Ms Teak’s grandparents.  However, given that Ms Teak and [X] live with them, it does not seem an unreasonable inference that they also have been playing a significant role in [X]’s life and care, particularly of late.

16. The parties know each other well.  Mr Barda is 37 years of age.  Ms Teak is 29.  They agree that their relationship commenced in 2010.  One of the factors leading to the breakdown of their relationship was Mr Barda commencing a relationship with another person, Ms S in August of 2014.  This relationship has now ended.  Ms S and Mr Barda have a child [B], who is aged about 12 months of age. 

17. At present, [B] lives with Ms S and Mr Barda spends relatively short periods of time with her, subject to the supervision of her mother.  Mr Barda has more recently again begun another relationship.  I have not been provided with any extensive evidence in respect of the nature of the relationship between Ms S and Mr Barda and why it broke and the implications, if any, of that for [B].

18. It is Mr Barda’s case that the allegations made against him of drug abuse and drug trafficking are exaggerated and calculated to provide retrospective justification for [X]’s unilateral relocation by Ms Teak and what he would characterise as her efforts to frustrate his proper level of involvement in [X]’s life. 

19. It is his case that he has recently obtained employment, in the (employment omitted) industry, where he is subjected to rigorous and random drug screen testing, which he has successfully completed.  He does not wish to give up his job or move away from [B].  In addition, any move to Queensland would also have obvious implications for his current relationship. 

20. These proceedings are designed to resolve this difficult issue, at an interim or provisional stage.  As with all issues to do with children, the best interests of [X] are the paramount or most important considerations.  However, having said that, whatever is the outcome in the case, it must have negative implications for [X].  Given the confused circumstances surrounding [X], there can be no satisfactory answer in the case. 

21. If the court orders Ms Teak to move back to Adelaide, after having been in Queensland for around nine months, it will be very disruptive for her.  In addition, Ms Teak is hardly likely to be well disposed towards Mr Barda if she is compelled to live in a location not of her preference and it is difficult to see how such a situation would lead to the seamless reintroduction of Mr Barda into [X]’s life. 

22. The principles and objects underpinning the Family Law Act 1975 emphasis the benefits which potential flow to children of having a meaningful level of relationship with each of their parents.

23. On the other hand, Australia is a free country, whose citizens value their entitlement to live how and where they choose.  There is no explicit principle of law that separated parents must live indefinitely in close proximity to one another.  In a number of cases, the High Court has indicated that Australians have an implied right, arising from the constitution, to freedom of movement. 

24. In these circumstances, it is a significant thing for the court to direct a parent that he or she must live in a particular location.  Ultimately, in cases of this kind, in which issues of parental relationship assume primacy, it is sometimes necessary for the court to offer a re-locating parent an election – either he or she returns, with the child concerned, to the location left behind, or, if that is not possible, the child alone be returned and placed in the care of the other parent. 

25. Mr Barda does not seek this latter outcome.  Rather, he seeks that the court make some sort of coercive order, in respect of Ms Teak.  This is to his credit.  For obvious reasons, it would be unpalatable for the court to place [X] in the care of a person of whom it is highly probable that she has only the most cursory of memories, if any at all.  On the other hand, if [X] remains in Queensland, and Mr Barda continues to live in Adelaide, it will be difficult for any form of warm and intimate parental relationship to develop between them. 

26. Such an outcome would be contrary to the underlying ethos of the Family Law Act 1975, which recognises a child’s entitlement to have a meaningful level of relationship, with both parents, regardless of the nature of the relationship between those parents.  Accordingly, in every sense of the word, the case presents a dilemma, in the context of the applicable law and the interests of both the parties and the child concerned.

Other background

1. The evidence in this case is contradictory and muddled.  It indicates that the parties’ lives, up to this stage, have been chaotic.  As these proceedings are being dealt with at an interim stage, they must be conducted in a truncated form, without the possibility of cross-examination.  As such, I am not in a position to resolve the very many evidentiary controversies arising between Mr Barda and Ms Teak.

2. In addition, as is frequently the case, in interim proceedings, it seems apparent that both parties’ material has been hastily compiled and is not fully complete.  At this stage, the only evidence available to me is from Mr Barda and from Ms Teak. 

3. More significantly, at this early stage, I do not have any independent expert assessment of [X] herself and the parenting capacity of the parties.  In a case such as this one, it will almost certainly be the case that such a report will be compiled to assist the court in deciding what the best outcome is for [X], in the case, when it is finally determined. 

4. However, notwithstanding the lack of evidence and the evidentiary issues arising in it, it is still necessary for the court to make a decision.  In so doing, I must carefully examine the evidence available and doing the best I can to determine what, if any, clear narrative of events arises and what events are in conflict.  I must then apply these findings to the relevant considerations, arising under the Act, by which [X]’s best interests are to be determined.

5. The lodestone, which must guide my deliberations is what is best for [X]?  I must be careful not to punish a parent or penalise one or other of them because they were a victim of circumstances.  Issues of right and wrong, which attach respectively to the conduct of both Mr Barda and Ms Teak are not the determinative factors in the case – it remains, in these invidious circumstances, what is best for [X], a little girl who cannot be held responsible for the muddled circumstances surrounding her. 

6. As previously indicated, Ms Teak’s life has not been without its difficulties.  She herself was the product of an abusive maternal relationship and as a consequence, she was placed in the guardianship of her grandparents, when she was 11 years of age.  In these circumstances, her grandmother raised her as a child.  However, she fell out with her grandparents, when she was an adolescent. 

7. She concedes that she was introduced to methamphetamines by [A]’s father, who was in and out of jail.  She also concedes that she had issues, as a teenager, with her own psychiatric health.  She fell pregnant, with [A] when she was a teenager.  The mother moved to Adelaide, in 2009, to be closer to her grandparents, who had moved to the city.  However, [A]’s father left soon afterwards and has never pursued a relationship with [A]. 

8. In September 2010, Ms Teak began her relationship with Mr Barda.  Her grandparents apparently did not approve of Mr Barda and were particularly protective in respect of [A]’s relationship with him. 

9. There were proceedings, in this court, between Ms Teak and her grandmother, in respect of [A].  Mr Barda was involved in those proceedings, particularly as the maternal grandmother made allegations against him.  I have not been provided with any extensive details of these proceedings. 

10. In any event, it is Ms Teak’s case that these proceedings, involving [A], caused a rift between her and her grandmother, during which her relationship with Mr Barda solidified.  It is further her case that her relationship with Mr Barda was, from time to time, an unhappy one.  She alleges that he was controlling towards her and trafficked in cannabis, methamphetamines and steroids. 

11. It is the mother’s case that it was the father who introduced her to methamphetamines and supplied her with the drug, usually for free.  As indicated above, Mr Barda denies this and asserts that the mother’s drug addiction was in place long before the parties met.  He denies any allegations of family violence.

12. The parties disagree as to the exact date of their separation.  The mother asserts it was August 2014; whilst the father asserts it was April of that year.  The parties do agree that Ms Teak was hospitalised, as a result of overdosing on prescription medication.  It was also round about this time that there were a number of violent altercations between the parties.  As previously indicated, these coincided with Ms Teak becoming aware that Mr Barda had become involved with Ms S. 

13. It is Mr Barda’s case that the violence was instigated by Ms Teak and he made a complaint to the police, which resulted in her being charged.  Ms Teak agrees she was charged but asserts that Mr Barda was stalking her, at the time.  She agrees that she was charged but the charges were withdrawn on the basis that she enter an intervention order in Mr Barda’s favour. 

1. It is her case that she did not assault Mr Barda, as he alleges.  Rather, in the aftermath of the parties’ separation, he made threats against her, including that associates of Mr Barda would ensure that she ended up in a body bag. 

2. Accordingly, the parties agree that they separated in difficult and conflicted circumstances, in late 2014, when [X] was a babe in arms.  Thereafter, notwithstanding quite significant issues to do with Ms Teak’s circumstances, she remained in her mother’s care. 

3. In this respect, Ms Teak acknowledges that she was admitted to the Royal Adelaide Hospital, in early 2015, when she was diagnosed with infected sores on her body.  These seem to have been related to drug addiction and resulted in her being referred for psychiatric assessment. 

4. Thereafter, it is Ms Teak’s evidence that her grandmother, who had returned to live in Queensland, elected to come to Adelaide once again to support her, [A] and [X].  In this context, it is now necessary, as best I can, to attempt to unravel what occurred between the parties between early 2015 and December 2017, when Ms Teak left Adelaide for Queensland. 

5. In this context, Ms Teak asserts that she did allow Mr Barda to spend extended periods of time, with [X], including overnight, during 2014, particularly whilst she was working late shifts at her (employer omitted). 

6. However, she asserts that this practice ended following her being charged and after this occurred, Mr Barda became increasingly unreliable and aggressive towards her.  As a consequence, she elected not to make [X] available to him, as she considered it would be unsafe to do so. 

7. Mr Barda refutes any suggestion that he was not actively trying to spend time with [X] during this period.  However, in concrete terms, he has not specified what he actually did in this regard.  Certainly, in the chaotic circumstances which have prevailed, it seems clear that he did not attempt to put in place any formal arrangements to spend time with [X].

8. The mother’s evidence, in turn, is not particularly clear about what happened in 2015.  She asserts that she allowed Mr Barda to have [X] in October of 2015, but was disappointed when he took her to the beach, without adequate sun protection, alleging that he used her nappy rash cream as a sunscreen, which was ineffective. 

9. In her affidavit, Ms Teak has deposed as follows, in respect of this period:

   “Mr Barda and I would catch up from time to time to talk about [X].  I would leave the children with my grandparents.  When I arrived, Mr Barda would offer me drugs and we would always just end up getting high together.  When my grandmother found out she was really angry at me and told me that she would not look after the children so that I could go out and get high.  This was a wake-up call and turning point for me.”[2]

   [2]  See mother’s affidavit filed 8 August 2018 at [52]

10. In contrast, Mr Barda denies this allegation.  He asserts that the parties did indeed meet, from time to time, but only so that he could see [X], in the presence of her mother.  He denies that any drugs were involved, apart from the hotel room incident, which arose because Ms Teak brought the drugs consumed. 

11. From Ms Teak’s perspective, this unhappy state of affairs culminated in the parties meeting in the hotel room in January 2016, at which stage she asserts she realised that she had reached rock bottom and needed to heed her grandmother’s warnings.  Essentially, it is her case that Mr Barda has had a corrosive influence on her life, which she has escaped with the assistance of her grandmother 

12. From my perspective, the difficulty with this assertion is the absence of any evidence from the lady in question.  In my view, for obvious reasons, her perspective on the situation and her view as to the relevant strengths and failings of the parents as parents is likely to be both useful and central in the outcome of the case.  

13. Accordingly, it is Ms Teak’s case that Mr Barda has had no time, with [X], since early 2016 and has done little, in concrete terms, to pursue his relationship with [X].  She agrees that, in early 2017, Mr Barda initiated mediation through Anglicare, which she resisted on the basis that she did not think the parties and their parenting issues were amenable to such mediation because of what she described as a history of extended physical, mental, financial and drug abuse. 

14. As a consequence of this attitude, a certificate, pursuant to section 60I was issued, at Mr Barda’s instigation, on 24 May 2017 by the relevant family dispute resolution practitioner.  This was because of Ms Teak’s refusal to attend mediation.[3]  The provision is directed towards ensuring that, if at all possible, parents avoid court proceedings in respect of arrangements for their children.  They are encouraged to make their own parenting decisions.

    [3]  See annexure B1 to Mr Barda’s affidavit filed 20 April 2018

15. Section 60I directs parties who have a dispute about any parenting issue to make a genuine effort to resolve that dispute by a process of family dispute resolution before application to the court.  This is usually in their and their children’s best interests. However, pursuant to section 60I(9) the court may proceed with an application for parenting orders, notwithstanding an attempt at resolution, if circumstances of urgency arise.  For obvious reasons, the circumstances confronting Mr Barda and Ms Teak, in early 2017, where not without their issues and, as such, it is not surprising that they were not immediately amenable to family dispute resolution.

16. Accordingly, on Mr Barda’s own case, it was approximately 12 months between the time he last saw [X] and the failure of the family dispute resolution process.  I appreciate that the legislation does mandate the application of a process of family dispute resolution prior to the instigation of court proceedings. 

17. However, the legislation authorises the institution of such proceedings in appropriate circumstances, without such certificates and, although it may not be in keeping with the strict ethos of the legislation, the provisions of section 60I are frequently more honoured in breach than observance, particularly in high conflict family situations.

18. In this context, it must also be noted that the proceedings were instituted on Mr Barda’s behalf in April of 2018, which again was approximately twelve months after the section 60I certificate issued.  It is Mr Barda’s position that he was frustrated during this period, by the administrative processes of legal aid, which funded him to attend at a Legal Services Commission family dispute resolution conference, but did not authorise the actual commencement of proceedings in court.  It is Mr Barda’s case that he applied for legal aid in August of 2017, some three months after the first certificate was issued. 

19. In order to facilitate Ms Teak’s attendance at the Legal Services Commission conference, Mr Barda provided what contact details he had for the mother to his solicitor, Mr Charman.  Ms Teak acknowledges that she provided her email address to Mr Charman in November of 2017 but she denies that she received any invitation to attend at an FDR at the Commission.  It is her case that she only knew of Mr Barda’s wish to spend time with [X], was when she was actually served with these proceedings. 

20. In the absence of Mr Teak’s attendance at the FDR, a further section 60I certificate issued in late 2017, which was the precursor to these proceedings, which as previously indicated were commenced in April of 2018 and which included an application for a Commonwealth Information Order, which is a mechanism usually directed towards Centrelink to provide address details to a litigant, in family law proceedings, of the other party, if that person is in receipt of social security.  Such a Commonwealth Information Order was made, on Mr Barda’s instigation, on 28 May 2018.  It lead to the service of the application, on Ms Teak, on 17 June 2018.

21. It is in essence Ms Teak’s position that she was largely unaware of both Mr Barda’s wish to spend time with [X] and of his efforts to engage her in mediation, particularly under the aegis of the LSC.  It is her position that during 2016/2017 she was largely focussed on getting her life in order, which from her perspective required the isolation of both [X] and herself from the influence of Mr Barda. 

22. It is further her case that, in September of 2017, her grandmother decided to leave Adelaide once again and return to Queensland, where she was needed to care for her own elderly mother, Ms Teak’s great-grandmother is 94 years of age. 

23. Against this background, Ms Teak has deposed that she elected to return, in tandem, with her grandparents, to Queensland, approximately two months later.  It is her position that it is essential for her and [X]’s well-being that she remain living close to her grandparents in order to maintain her rehabilitation.  She refutes any suggestion that her move was precipitated by Mr Barda’s instigation of FDR, rather she asserts the fact that both occurred at around the same time is purely coincidental.

24. The legal provisions relating to the resolution of parenting disputes are complex.  I accept that it would be unreasonable for me to characterise Mr Barda as having a sophisticated knowledge of these matters.  In addition, the bureaucratic requirements of any grant of legal aid are convoluted and potentially frustrating in nature.  It is not unknown for even the most resolute of persons to feel disempowered, when grappling with large bureaucracies such as Legal Aid and the courts. 

25. However, in my assessment, the evidence indicates that Mr Barda did not approach these proceedings with any significant degree of proactivity.  I acknowledge that I am not in a position to attribute, with any degree of exactitude, where the blame lies for this lack of proactivity.  I also acknowledge that Ms Teak was not likely herself to exhibit any significant degree of enthusiasm to bring the various parenting controversies arising between her and Mr Barda to a head.  From her perspective, in my assessment, it was very much a case of letting sleeping dogs lie.

26. Accordingly, in my assessment, it would be naïve to think that one party is clear of blame in respect of the circumstances surrounding [X]’s departure from Adelaide.  On the one hand, Ms Teak is likely to have been well aware that Mr Barda would not easily agree to [X] moving far away from him to another state.  Given the parties history with one another, it would have been naïve of her to think so. 

27. On the other hand, in my assessment, I am entitled to infer, from all the relevant circumstances arising in the case, particularly the lengthy hiatus between the last time Mr Barda saw [X] and the instigation of these proceedings that he could have done much more to advance his relationship with the child concerned but did not do so.  Why this is the case can only be a matter of conjecture for me, at this stage.  However, it would appear to be the case that his life, over the last two years or so, has not been without its own complicating factors. 

28. It is against this difficult background that the court must return to the essential question in the case – what is the best outcome for [X], at present?  This question is not to be resolved by reference to the failures of her parents in respect of them engaging or failing to engage the court’s processes in the child’s life at an earlier stage.

The legal principles applicable

1. It is convenient to fit the problem arising in this case into the catchphrase adopted by lawyers of a unilateral relocation case.  Relocation cases arise when one parent wishes to live a significant distance away from the other parent concerned, which necessarily must have implications for the nature of the relationship between the child concerned and the parent left behind.  Very often, such cases also involve the interests and feelings of others, particularly family members, most usually grandparents, who will also be affected by the move. 

2. The ethos of the Family Law Act 1975 encourages parents to make all decisions concerning their children, particularly ones of importance or long term significance to their children, jointly.  One aspect of major long-term decision making, in respect of a child, is a decision relating to a child’s living arrangements, which makes it significantly more difficult for the child to spend time with a parent [see Family Law Act at section 4].

3. Because of the import of such decisions, for a child, the court is generally critical of the use of self-help, particularly on a provisional basis, in respect of any relocation issues pertaining to a child.  Relevant High Court authority indicates that cases involving the potential relocation of a child require close and delicate analysis, involving the weighing up of the pros and cons of the proposed move from the perspective of the best interests of the child concerned. 

4. For obvious reasons, it is not optimal, for the court, to undertake such an analysis retrospectively, in the face of a unilateral move of a child, engineered by one parent alone.  Such actions are likely to exacerbate rather than diminish parental conflict, which is not helpful to children, who are more likely to thrive if they have a sense that their parents cooperate in parenting.

5. In Zahawi & Rayne[4], the Full Court of the Family Court has recently said as follows:

   “All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests.  What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:

   …The reality is that 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 have been incurred.[5]

   “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests.  However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation.[6] And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.”

   [4]  See Zahawi & Rayne [2016] FamCAFC90

   [5]  U v U 2002 FLC 93-112 at [92].

   [6]See, for example, the comments of Kirby J in AMS v AIF (above), at [77]–[78].

6. At the outset, 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. 

7. 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].

8. 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.

9. 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.

10. 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.

11. 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. 

12. 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.

13. 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.

14. 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.[7] 

    [7]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

15. 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].

16. 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.

17. 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)].

18. 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)].

19. 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)].

20. At the final hearing stage, Mr Barda seeks the application of the presumption of equal shared parental responsibility.  Ms Teak seeks that she should have sole parental responsibility for [X].  In the interim, she proposes that Mr Barda should spend only supervised time, with her father, in Queensland, at Mr Barda’s expense. 

21. Given the muddled nature of the evidence in this case and the fact that both assert that the other has behaved in an antisocial fashion, which has fundamental implications for [X]’s welfare, I do not believe that it would be appropriate for the presumption of equal shared parental responsibility to be applied to her circumstances.

22. Having determined that the presumption does not apply, it is now necessary for me to consider what is the outcome likely to be in [X]’s best interests, as a result of applying the relevant section 60CC considerations?

23. This is a difficult task, given the importance placed, in the legislation, on children having a meaningful level of relationship with both their parents.  However, the Act itself does not prevent a parent relocating a child per se.  Rather, it provides for the “careful exercise of a structured discretion to determine the appropriate order to be made.”[8]

    [8]  Morgan & Miles [2007] FamCA 1230 at [74]

1. Cases involving issues of relocation are difficult as it is obviously problematic for the court to reconcile the entitlement of children to maintain and develop relationships with all aspects of their family with the entitlements of parents to live where and how they choose.  In some cases, it is also incumbent upon the court to consider whether the parent who wishes to restrain a move could in fact move closer to the child concerned, rather than compel a move back. 

2. In Adamson & Adamson [9] the Full Court described a father’s electing to live and work in one location and a mother choosing to live somewhere else as being different manifestations of the same perfectly legitimate right.  The Full Court went on to indicate:

   “The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire.

   These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interest where those interests would so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effect.”[10]

   [9] Adamson & Adamson (2014) FLC 93-622 at 79,699 at [59]

   [10] Ibid at 79,700 at [66]

3. In this particular case, Mr Barda has indicated that it will be impossible for him to move to Queensland to be closer to [X].  This is because of his work situation and relationship with [B].  In addition, he is not seeking an immediate order that [X] live with him. 

4. In these circumstances, his desired outcome in the case can only be achieved through the making of a coercive order requiring Ms Teak to move back to Adelaide, although she has no wish to do so, and, even if she did, she has not got the financial means to achieve it. 

5. In Sampson & Hartnett (No 10)[11] the Full Court confirmed that the court does have such a coercive power.  However, it is a power to be exercised rarely and is one which does not come without implicit risks. The Full Court said as follows:

   “If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic.  The person being ordered not to move at least has chosen that location as some stage and for reasons which one assumes at least once existed.  This contrasts with a person who may not wish to go somewhere and therefore the order is much more of an imposition on that person’s freedom.

   The proper exercise of such a power is likely to be rare, because:

   ·the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and

   ·in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent.  If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous.  If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.

   The prospect of ordering a parent to relocate and in effect “parent” in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement.  What if the parent, in response to such an order, simply hands the child to the other parent, perhaps in circumstances such as in the instant case, where for whatever reason, there is not a well-established relationship between the child and the other parent?”

   [11] Sampson & Hartnett (No 10) (2007) FLC 93-350 at 82,016 [57] – [59]

Discussion

1. In his affidavit material, Mr Barda has not delineated, on his part, any specific capacity or ability to provide financial support to aid [X]’s return to Adelaide.  During the course of the hearing, he indicated, through his counsel Mr Charman, a willingness to support provide such support but did not articulate what it would be. 

2. It is however his overall position that he is a person of moderate means, who has recently returned to the paid workforce.  In these circumstances, I do not accept that he has any realistic capacity to provide any financial support to fund Ms Teak’s return back to Adelaide.

3. In addition, at this stage, I do not consider that I am in a position to easily dismiss Ms Teak’s evidence that she cannot fund her return to Adelaide and, even if she did, she would not have available to her, in Adelaide, any viable sources of emotional support.  Her evidence is that all her familial support is in Queensland. 

4. Ms Teak has candidly admitted that there was much to be criticised in her parenting of both [A] and [X] in the period 2015/2016, during which period her life appears to have been out of control due, in large part, to the scourge of drug addiction.  I accept that it is more likely than not that Ms Teak’s capacity to parent both [A] and [X] effectively is fragile and, as such, she requires as much support, both emotional and practical, as possible. 

5. The evidence is also unequivocal that Ms Teak has provided the vast majority of [X]’s care since the parties separated [see Family Law Act section 60CC(b)] . In these circumstances, in my view, significant risks must arise for [X] if her mother is separated from these sources of practical and emotional support [see section 60CC(d)].

6. Essentially, I find that it would be detrimental to [X] and potentially put her at risk of some form of emotional or physical harm if Ms Teak was compelled to care for her away from the support of her grandparents and the life she is in the process of building for herself in Queensland. 

7. At this juncture, it seems improbable that [X] has any level of relationship with her father, which would fall within the descriptor of meaningful.  The two have not engaged with one another for almost half of [X]’s life.  As such, in my view, this relationship has potential to be developed but, at this stage, is not of central importance to [X]’s development and care, which is centred on her mother. 

8. In my view, there are very significant risks arising, if there is any precipitate or ill-considered change to the current arrangements for [X]’s care.  In my view, this is one of the more important considerations arising in the case.  Basically, I am not convinced that it would be in [X]’s best interests to compel her mother, to move against her wishes, to Adelaide, a place which has unhappy connotations for her. 

9. I acknowledge that the court must be careful to avoid retrospectively endorsing the unilateral actions of parents.  In my experience, it is usually preferable that any issues of parental relocation be fairly and transparently determined on a level playing field, not one skewed to the advantage of the relocating parent. 

10. However, every case is unique and must turn on its own individual circumstances. In the current case, it is axiomatic that the parties’ relationship, with one another, not only as parents, but as separated partners, was chaotic and muddled. Neither can be described as having displayed a finely tuned appreciation of the responsibilities of being a parent [see section 60CC(3)(i)].

11. It is extraordinary, to say the least, that the parents concerned are able to agree on a mutual consumption of methamphetamines, in a hotel room, whilst their child was present, but more so when one of them uses it as evidence to support her recollection as to when the other parent concerned ceased to interact with the relevant child. 

12. Accordingly, the circumstances surrounding the parties’ relationship are not within the normal range of experience.  This is not a case where a parent has wilfully set out to sabotage a strong and existing relationship between parent and child to secure their own personal and/or selfish ends.

13. Essentially, on the basis of the evidence available to me, untested as it is, I accept that circumstances of significant personal emergency confronted Ms Teak in the move back of her grandmother to Queensland, which necessitated her own move there. 

14. I accept that Ms Teak recognised that it would be difficult for her to cope, as a functioning parent, without the support of her grandmother.  As such, in my view, it is more likely than not to be in [X]’s best interests to remain in her mother’s care, in the location where she (Ms Teak) feels emotionally, physically and financially secure. 

15. In my assessment, it would be a rash and unwarranted experiment to direct Ms Teak to return, with [X], to Adelaide.  It is uncertain where she could live.  She would have to leave her current employment.  In addition, in my view, it cannot be guaranteed that such a direction would readily lead to the growth of a significant level of relationship between [X] and her father, given the extent of the separation between the two, up to this stage. 

16. In my view, both parties have displayed a compromised level of insight into the responsibilities of what it is to be a parent.  I have no wish to be unduly censorious but this must be the case given each of them has admitted to consuming methamphetamine in the presence of their child.  However, in my assessment, it is a positive thing for a parent to attempt to extricate him or herself from the environment in which he or she has previously consumed drugs.

17. [X]’s age is a very significant consideration in the case. She is almost five years of age [see section 60CC(3)(g)]. She is not likely to have any strong independent memories of him, given the time which has elapsed since she last saw him. I also recognise that there are very significant logistical difficulties lying in the way of [X] spending time with her father in order that the relationship between the two may be in some way reinstated.

18. Accordingly, to make an order which will result in mother and child being able to remain in Queensland must have obvious implications for whether [X] will ever have a relationship, with her father, which can be described as meaningful as envisaged by the provisions of section 60CC(2)(a).

19. In Mazorski v Albright[12] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.  At present, [X] has no relationship with her father in these terms.  Mr Barda has indicated that he cannot relocate to Queensland.

    [12]  See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]

20. In these circumstances, the problem arising from making an order which enables [X] to remain in Queensland, is that it will defeat one of the central aspects of the Act, which favours a “substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children.”[13]

    [13] See Goode & Goode (2006) FLC 93-286 at 80,901 [72]

21. I am gravely concerned that determining the issue at this stage, albeit on a provisional basis, may potential render a final hearing otiose and so result in the negation of one of the primary considerations arising under the Act, which is strongly underpinned by the objects and principles delineated in section 60B.

22. [X]’s life’s hitherto has not been without its challenges.  I am acutely aware in such circumstances that there are compelling arguments in favour of her having the best possible relationship with each of her parents in the event of some future incapacity of one or other of them.  However, I must look at all the applicable considerations and determine what is the best outcome for [X] given her idiosyncratic circumstances?

23. I do not consider it would be in [X]’s best interests to make the coercive order sought by Mr Barda, given the length of time since he last interacted with her and Ms Teak’s personal circumstances.  I am acutely aware that this leave the question of how she will interact with her father in abeyance.

24. At this juncture, I have come to the conclusion that it is appropriate that this issue be professionally examined through the mechanism of a family report.  If he is able and willing, Mr Barda can take part in such a report, which will also give him an opportunity to engage with [X].  Depending on the outcome of this report and the proposals put by each party thereafter the issue of how [X] may interact with her father can be re-examined.

25. Given the stage at which these proceedings arise and the mutual allegations made of antisocial behaviour, in my view, it is not appropriate for the presumption of equal shared parental responsibility to be applied to [X]’s care.

26. After having considered the various section 60CC factors, I have come to the conclusion that, pending the preparation of a family report, [X]’s best interests will be served if she remains in her current circumstances. The major factors precipitating this decision are the undisputed evidence that Ms Teak has been [X]’s primary carer since her birth; the length of time she has not engaged with her father; and my provisional acceptance of the mother’s evidence that she has rectified the significant problems in her life by moving to Queensland – this assertion will be examined by the family report writer, in due course.

27. In addition, there appear to be no reasonably feasible and available mechanism for Mr Barda to engage with [X] at this stage without the application of some form of coercive order to Ms Teak, which I do not consider would be an outcome in [X]’s best interests at this stage.  Regrettably all the possible outcomes currently available to the court, at this stage, as a consequence of the very significant deficits in the parties’ parenting relationship, must have negative implications for [X].  The option upon which I have decided, in my view, is more likely than not to have the least component of deficits largely because it seems to me to provide the most stability for [X].

28. Although I sympathise with the difficulties which have confronted Mr Barda in negotiating the labyrinthine provisions of Subdivision E – the compulsory family dispute resolution provisions of the Act – and thereafter satisfying the conditions of his grant of legal aid, it remains the case that there have significant delays in the case during which he has not engaged with [X] [section 60CC(3)(c)].

29. 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 twenty-four (124) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     31 August 2018