BECKFORD & BECKFORD

[2020] FCCA 2639

FEDERAL CIRCUIT COURT OF AUSTRALIA

BECKFORD & BECKFORD [2020] FCCA 2639

Catchwords:
FAMILY LAW – Parenting – unilateral relocation – no notice provided to the Mother – alignment with the Father – meaningful relationship – tyranny of distance – children and the Father ordered to return.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 69ZL

Cases cited:

Franklyn & Franklyn [2019] FamCAFC 256

Goode & Goode [2006] FamCA 1346

Applicant: MS BECKFORD

Respondent: MR BECKFORD

File Number: MLC 8078 of 2020

Judgment of: Judge Carter

Hearing date: 21 August 2020

Date of Last Submission: 21 August 2020

Delivered at: Melbourne

Delivered on: 21 August 2020

REPRESENTATION

Counsel for the Applicant: Ms Hutchings

Solicitors for the Applicant: Women's Legal Service Victoria

The Respondent appeared in person.

ORDERS

1. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children X born in 2006, Y born in 2010 and Z born in 2014, and Victoria Legal Aid is requested to facilitate such appointment as soon as possible.

2. Upon notification of the identity of the Independent Children’s Lawyer, each party shall forthwith provide to the Independent Children’s Lawyer a copy of all documents filed by them in the proceedings.

3. The Father and the children X born in 2006, Y born in 2010 and Z born in 2014 (“the children”) return to the State of Victoria on or before 18 September 2020.

4. Upon the Father and the children’s return to the State of Victoria, the Father shall forthwith advise the Mother’s solicitors of his residential address and contact details.

5. The orders made on 12 August 2019 otherwise remain in full force and effect.

6. The proceedings are adjourned to 30 September 2020 at 9.45am for mention.

7. The parties may inspect only and the parties’ legal representatives may inspect and photocopy the documents produced by the Department of Health and Human Services in response to the Notice of Risk filed on 14 August 2020 in these proceedings.

8. The parties and their legal representatives are restrained from providing a copy of the documents or disclosing their contents to any other person without an order of the Court.

9. The parties be at liberty to apply.

10. Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

AND THE COURT NOTES THAT:

A.The information produced by the Department of Health and Human Services is confidential and cannot be disclosed to any other person without an order of this Court.

B.Penalties may apply pursuant to section 112AD and section 121 of the Family Law Act 1975 if the information produced by the Department of Health and Human Services is disseminated other than as ordered in these proceedings.

C.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

D.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

F.If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8078 of 2020

MS BECKFORD

Applicant

And

MR BECKFORD

Respondent

REASONS FOR JUDGMENT

Revised from Transcript

1. This is the second return before me in relation to an application regarding the three children of the relationship:  X, who is 14, Y who is 10 and Z who is 6. Pursuant to orders that were made on 12 August 2019, substantially by consent, the children were to live with their Father and spend time with their Mother. In relation to the child X, her time with her Mother was to be pursuant to her wishes. The children Y and Z were to spend alternate weekends with their Mother, alternate Wednesdays overnight and half of the holidays.  There were a raft of other orders as they were quite detailed orders.

2. It appears, and it is not in contention, that the Father has unilaterally relocated to northern Queensland. He did that with no notice to the Mother and no application by him to do so. I understand he arrived in City B on about 29 June 2020. 

3. The Father has represented himself in these proceedings. I note that he indicated to me that he would have preferred the matter to have been adjourned so that he could obtain independent legal assistance. I have declined to grant that adjournment on a number of bases. Firstly, this is a matter, in my view, that is quite urgent, given that the Father’s unilateral relocation with the children is essentially significantly impeding the children from having a relationship with their Mother.

4. A Child Inclusive Conference Memorandum has been prepared that also says that it is necessary and appropriate, and in the children’s best interests, that there be an immediate return of the children to Melbourne and a resumption of the children’s time with their Mother. I should also say that the Father has been able to represent himself quite articulately. He has been able to refer to a number of concepts, including his freedom of movement, the children’s best interests, questions of risk and the concept of a meaningful relationship not having to be an optimal but a meaningful relationship.

5. He was also represented and in attendance at the previous Court proceedings and I am satisfied from the submissions that have been made by him that he is very familiar with the concepts with which I must now grapple. In my view, he has not been disadvantaged by the matter proceeding the way it has. He has been able to make his submissions.  Certainly if I form the view, which I do, as I will now set out, that the children and the Father should return to Melbourne on an interim basis, he will have the opportunity to run an interim relocation case in due course, if that is what he wishes to do, and he will have an opportunity to be represented at those hearings.

6. Given the urgency of the matter, in my view the children’s best interests are met by the matter proceeding at this stage and not being further adjourned for the Father to obtain additional advice and representation.

7. As I have already set out, there were final orders made on 12 August 2019, and I should say that those orders included an order that the parties have equal shared parental responsibility for the children. There were also further orders, including that both of the parties were restrained from changing the children’s schools without the agreement of the other parent.

8. The parties had separated in September 2017. It is clear from my reading of the previous file, that there have been significant issues raised by the Father in relation to the Mother and her mental health functioning, and I will return to this issue later in these reasons as those are matters that he continues to raise in his current material. There were psychiatric assessments previously prepared by Dr C in relation to the parties as well as a Family Report, and again I will turn to those matters shortly.

9. The issue in relation to this family came to a head starting in about March of this year. At that time, the Mother attended the children’s school to collect Y and Z from the school and the paternal grandfather was present. There was an unfortunate argument at the school and an altercation about where the children should stay.

10. It is the Father’s case that the Mother physically dragged the children, which the Mother denies. At any rate, it appears common ground that there was an unpleasant exchange on that day. The Father also asserts that on 16 March 2020 the Mother assaulted the paternal grandmother when she was dropping Y at school. The Mother denies that. 

11. On 18 March 2020, it is common ground that there was an exchange, or an attempted exchange, of the children at a fast food restaurant. The Mother says that Y and Z were sitting in the Father’s car, that he was standing outside the car smoking with the doors locked, and that he took no steps at all to encourage the children to leave the car. The Father says the Mother was erratic, that she was verbally abusive and that this was very distressing and upsetting for the children who witnessed the exchanges.

12. The Mother acknowledges in her material that she was desperate and upset, and she acknowledges that her behaviour, no doubt, was confusing and upsetting for the children. It is common ground that the children have not spent any time with their Mother since then.

13. There were various attempts made between the parties to negotiate alternate arrangements from around that time with the Mother, for instance, suggesting perhaps there could be shorter visits. Those proposals put by the Mother were variously rejected by the Father whose position has been that the children’s visits should be subject to their wishes.

14. The Mother has set out those emails and exchanges with the Father, including an email that he sent on 8 May 2020 to the Mother’s lawyers, in which he wrote, amongst other things:-

    …my position has been consistently been [sic] the same, which includes giving due consideration to the wishes of the children (more so given the latest interactions between the children and your client). I have spoken with the children and they have unfortunately advised they are not willing to see/talk with your client this coming Sunday. If their wishes do change leading to Sunday (which is beyond my control and I cannot guarantee) and they want to speak to your client at a specific time, preliminary notice will be provided directly to your client.

    It is common ground that the children did not want to spend time with their Mother and did not do so.

15. I also have an earlier email from the Father. It appears undated but it is at exhibit ‘JC2’ to the affidavit of the Father filed on 13 August 2020.  It appears to be dated sometime in March. In that email, amongst other things, he also says that time would be subject to the wishes of Y and Z. He also says that if they do change their mind and want to see their Mother he would facilitate those wishes.

16. As I said, the parties attempted to resolve the dispute but that was not able to be resolved. The Father said at one point that it was necessary to stop visits to protect the health and safety of the children. He also said that he lives with his parents and that COVID-19 could be a risk for them, and therefore no arrangements were able to be made.

17. The Mother says the last communication she had with X was on a Facebook messenger on 21 April 2020. On 8 May 2020, the Father said the children did not want to see her for Mother’s Day. The next significant event was that the Father then relocated to City B with the children at the end of June.

18. The Father has subsequently enrolled X in a different high school, and indeed all the children at school. He has also taken them to various medical and allied health professional appointments, which is also in breach of the orders that were made in 2019.

19. The Mother, after finding out that X had been removed from her high school, filed the Initiating Application on 24 July 2020. She then discovered on 30 July 2020 that the Father had in fact relocated to Queensland and issued an Application in a Case.

20. I have read the Mother’s material, and I have also read the material filed by the Father, which includes an updated affidavit that he filed yesterday.  The Father’s position is that the Mother has significant mental health issues, that she has behaved inappropriately with the children, that she has subjected them to negative views about him and that the children are struggling significantly with having any relationship with their Mother.

21. The Father is critical that the Mother did not pursue family therapy with X, which was contemplated in the 2019 orders. He says that Y’s relationship with her Mother has significantly deteriorated and that Y’s mental health is impacted negatively when she sees her Mother. He deposes that he has serious concerns about the children’s wellbeing when spending time with the Mother. Although he makes similar comments both in his material and to me, there was little that was actually articulated by him that gave any particularity to that claim.

22. The Father comes to the Court today and says that the move that he has made to City B is a permanent move. He says that he will not be returning to Victoria, even if I determine that the children should return to Victoria and that the orders made in 2019 should continue, until such time as this Court can properly hear an interim, or indeed a final, relocation application.

23. In relation to the reasons for moving that have been articulated by the Father, in my view, even reading the material as closely as possible, and hearing the submissions, those reasons appear vague and unclear. There seems little, in my view, that would suggest that there was any pressing or urgent requirement that necessitated a unilateral move without notice – either to the Mother or to this Court – to north Queensland.

24. In his first affidavit, the Father says he moved to seek job opportunities, to improve his financial position and to accelerate the rehabilitation of a thumb fracture that he had sustained previously at work. I understand he has had several surgeries in relation to that, however there is nothing from any medical professional that suggests that moving to Queensland is a necessary or a useful step in his rehabilitation.

25. I note that in terms of his financial situation, the Father deposes to receiving adequate support through WorkCover. While he was living in Victoria with the children for the last 12 months, he has had the benefit of living at his parents’ home. That home, as I understand it from the submissions that were made, is a three-bedroom home. 

26. Notwithstanding that the Father says the home is a claustrophobic environment for the children and, although it is a three-bedroom home, he says the children had been preferring to sleep in his room. He told me today that the children are very distressed in Victoria and, in fact, have been unable to sleep in Victoria. He says that is in stark contrast to their presentation in Queensland where they are able to have their own bedrooms, sleep in their own bedrooms, and express themselves and live in their own spaces happily.

27. In relation to the subsequent affidavit the Father filed, again that is largely historical. He sets out at length his concerns about the Mother’s mental health, which he asserts she has not been completely upfront about. He refers to the previous psychiatric assessment, which I note was completed in December 2018, and the previous Department of Health and Human Services (“DHHS”) involvement in 2017. All of those matters pre-date the making of the final orders in August 2019.

28. The Father’s submissions today included that he felt somewhat coerced and possibly bullied into agreeing to the final orders that were made in August 2019, in that he felt that he had no choice but to agree to the orders proposed at that time. He does not depose to that, but it is what he tells the Court today. He also says in his material that the Child Inclusive Conference Memorandum is biased, but he has not articulated how that is so. The fact that it does not accord with the Father’s views, of course, does not mean it is biased, it is simply a different view to that taken by the Father.

29. In his submissions today, the Father has said that the focus of these proceedings so far have been on him and his behaviour, whereas the focus ought to be on the children. He says that they are stable in Queensland and that they should not be returned to Victoria because that would put their stability and security at risk. He says there are significant benefits in Queensland in that the children are not under lockdown and that they are able to physically attend school.

30. The Father says that there are no issues that the Mother can raise about the children’s welfare in his care. He says that his freedom of movement should not be impacted upon. As I have already said, he has indicated that he will not be returning to Victoria, even if I order that he do so. He said the reason for that was not to ‘paint the Court into a corner’, but he said he could not keep going through the “mental torture”. When asked what he meant by that, he said that the children found it very traumatic and distressing to see their Mother and that he has to deal with the emotional fallout and distress that is exhibited by them upon their return from their Mother’s care. He said that there is no “living” for him and the children in Victoria.

31. The Father also asserted that the Mother has some recent criminal issues, which he saw because he had been looking through the Magistrates’ Court of Victoria website. He said he has found that she has had a matter that has had several return dates in the Magistrates’ Court of Victoria in recent times. 

32. Whilst it is not on affidavit, I understand from Counsel for the Mother that her instructions are that her client, at the end of last year, had a driving or parking offence. She was not able to articulate exactly what the Mother had been charged with, but if what the Mother says is correct, then that would not cause the Court significant concern in that it is not a violent offence or a drug-related offence, or something of that type, that might indicate the children being at risk in her care.

33. The Mother seeks the immediate return of the children. The mother relies on the final orders that were made just over a year ago, as well as the recent Child Inclusive Conference Memorandum. I should say that there was a previous Child Inclusive Conference Memorandum in this matter from September 2018. In that report, the Family Consultant observed that the children were all happy to see their Mother, and the Family Consultant was concerned that the Father had appeared to have discussed in detail aspects of the parental dispute with the children, including providing the children with negative and possibly inaccurate information regarding the Mother’s mental health. Recommendations were made at that stage for time with the Mother to commence and to increase incrementally.

34. I have referred also to the Family Report by Ms D dated 27 June 2019. It is certainly true that there was some complaints made by X, at least, in relation to her Mother, whereas Y commented that she “was fine having a sleepover at mum’s house”, and Y also said that Z also “feels happy with mum”. Y described missing her Father when she was spending time with her Mother. Y said she did not like her Mother asking a lot of questions, and that this makes her feel anxious. Y expressed a desire to “have a happy family” without conflict.

35. X said to Ms D that she was not ready to see her Mother, felt uncomfortable, has panic attacks and freaks out and can cry and faint at school and at home. She had seen her Mother on Mother’s Day that year, but reported having some disagreements and misunderstandings with her Mother on the phone. X commented that she “still loves mum and sometimes we have a good time” but she also said that her Mother has lied and said mean things about her Father. 

1. In terms of the observations, they were substantially unremarkable. The Father was observed to have a close and loving relationship with the children. In terms of the observations with the Mother, the children and the mother engaged appropriately. The Mother provided them with “affectionate greetings” and engaged in an “affectionate manner” with the children that they appeared receptive to.

2. Ms D also had the benefit of a psychiatric assessment of both the parties. Whilst Dr C said that the Mother may have some borderline personality traits, it was his assessment that the Mother was not suffering from any serious psychiatric condition that impacted on her capacity to care for the children.

3. The Father made it clear, both to Ms D and also to this Court at this time, in his material, that he does not accept that the Mother does not have significant mental health issues. Ultimately, Ms D recommended that the children live with the Father, and that Y and Z spend alternate weekends with their Mother, and in conclusion commented that “It is further considered that the children need stability and a lack of direct exposure to parental conflict in order to enhance their emotional well-being”. She said the children should remain living with the Father, but went on to say that “it is also important that they have the opportunity to spend meaningful and positive time in maternal care, this parental relationship being significant”.

4. The move by the Father has, of course, uprooted the children from their familiar environment and also made it extremely difficult for them to have any relationship with their Mother.

5. The parties attended upon a Family Consultant on 18 August 2020 for a further Child Inclusive Conference. That was conducted via Microsoft Teams, which would likely have to have occurred anyway given that the Father and the children are in north Queensland. There are a number of observations made in that Child Inclusive Conference Memorandum that the Father challenges, which, on their face, raise some significant concerns about the Father’s capacity to facilitate a relationship between the children and the Mother.

6. In the affidavit material to which I have already referred, the Father had said that he relocated to find work. During his interview with the Family Consultant he stated that his “safety was at risk in Melbourne” due to concern that he was going to be harmed by “the community” due to the Mother. That is not something that he expanded on before me, or that I can find in his sworn material.

7. The Father also claimed to the Family Consultant that the children are better off in Queensland and are more relaxed. He alleged that the children do not want a relationship with their Mother due to her alleged erratic behaviour. It was “difficult” for the Family Consultant “to obtain specific details regarding any specific behaviours of concern” in relation to the Mother’s parenting “that would warrant the children wanting no relationship and having no time with her in the future”.

8. Having heard the submissions from the Father, and having read his material, I share that view. There seems little detail that suggests that there was an immediate need to effectively cease all face-to-face time between the girls and their Mother.

9. The Family Consultant was to an extent able to interview X, Y and Z.

10. X was interviewed and the Family Consultant observed that her reasons for not wishing to pursue a relationship with her mother appeared to be “disproportionate to her reports regarding her mother’s behaviour”. The Family Consultant observes that X “became defensive when considering her response if she had to relocate back to Melbourne”, saying, “no one can tell me what to do, we are the ones in charge”, and that X became “notably frustrated” and described “feeling angry at the situation”. X “appeared empowered and presented her father in an overly positive light”. The Family Consultant noted that her “interview narrative appeared to display evidence that she has been strongly influenced by her father’s views”. She refused to see the Mother if she had to return to Melbourne. 

11. Y was also interviewed. She said she “likes living in City B”.  She said that prior to her time ceasing with the Mother in March this year it was “going okay”. She said there was that occasion at school, to which I have already referred, where she did not want to go with the Mother that time. Her reasons for not wanting to go were, according to what she told the Family Consultant, that sometimes the Mother asks her questions.

12. Y said that she used to speak to the Mother on the telephone but she does not want to do that now because X does not want to, so she does not want to either. Y “was able to recall some positive memories” of spending time with the Mother and was “not positive” about returning to Melbourne.

13. Z was also interviewed. It appears, from what the Family Consultant says, that there was difficulties in ensuring that Z was interviewed alone and without the influence of her older sister. X appeared to find it difficult to remain out of the room and whilst she was asked to leave at one point, came back in after a few minutes and stated that she “did not feel that a six year-old should be interviewed alone”.

14. X was also described as standing over Z during the interview, sternly gazing at the Family Consultant “as if attempting to intimidate her”.  This made Z appear “incredibly uncomfortable” and the Family Consultant determined it was not appropriate to continue the interview. Prior to doing so, Z had stated that “she misses her mother sometimes” and that she does not speak to her on the phone but would like to see her.

15. The Family Consultant, under the heading “FUTURE DIRECTIONS”, noted that it was “very unfortunate” that the children have relocated to Queensland and the mother’s time with them has ceased. She said that there was nothing really articulated to her that suggested there was any valid reason for the sudden removal of the children from their familiar environment and from their capacity to have a relationship with their Mother. She said that there are concerns “that the children have been influenced heavily by the father and his family against their mother”, that X “appeared to be very aligned with the father and his family”, and that she appeared to be “quite controlling over her siblings” and was influencing their views of the Mother. 

16. The Family Consultant said that whilst X appears quite aligned with her father there still appeared to be “some hope for an improved relationship between Y and Z and their mother” given that they are still young.  It is difficult to see how that relationship can be improved if the children remain as physically far apart from the Mother as they currently are. The Family Consultant essentially recommended that the children should return to Melbourne and resume the arrangements that were in place before the Father’s unilateral removal of them from Victoria. 

17. The Father’s position, as I have already outlined, is that he and the children should be permitted to remain in Queensland.  He effectively seeks that the 2019 orders, insofar as they relate to the children’s time with the Mother, should be suspended. The Mother says that the children and the Father should return immediately and time pursuant to the final orders should resume.

18. This is an interim hearing and, accordingly, as both Counsel for the Mother and the Father have articulated, I cannot make findings of fact where they are in dispute. Because this is an interim hearing, short reasons are permitted pursuant to section 69ZL of the Family Law Act 1975 (Cth) (“the Act”). I still have to go through the processes as set out by the Full Court of the Family Court of Australia (“the Full Court”) in Goode & Goode [2006] FamCA 1346 (“Goode”). That involves, of course, a consideration of the factors pursuant to section 60CC of the Act. Whilst I do not intend to go through each of those factors, I do take them all into account.

19. I have to identify the parties’ competing proposals, which I have done, identify the issues in dispute, which have I set out earlier, identify any agreed or uncontested relevant facts and consider, as I have already said, the factors set out in section 60CC of the Act.

20. In terms of the agreed or uncontested relevant facts, there were final orders made in August 2019.  Those orders were, it seems, substantially complied with until about March of this year. The Father has subsequently moved the children, in June 2020, and changed their schools, and no time has occurred between the children and the Mother since March 2020.

21. In terms of the factors pursuant to section 60CC of the Act, the two primary factors are, of course, the benefit to the children of having a meaningful relationship with both parents, and the need to protect children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

22. It is the Father’s case that whilst he has relocated to Queensland with the children they can still continue to have a meaningful relationship with the Mother, and that meaningful does not mean optimal. He is correct in that this is not what meaningful has been taken to mean. It is his case that the removal of the children was necessary to protect them from psychological harm. That is a fact in dispute.

23. In relation to factual disputes at an interim hearing, the Full Court’s decision in Goode does not mean that the court has to ignore all allegations as to risk if they have been plausibly made.  Indeed, the Full Court in the decision of Franklyn & Franklyn [2019] FamCAFC 256 said that:-

    Serious allegations cannot be ignored at interlocutory events simply because they have been put in issue…but remaining astute to potential risk is not the same thing as assuming the truth of and reacting impulsively to everything the mother alleged without regard for other evidence and the wider context.

    [citations omitted]

24. Their Honours went on to say that “Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so”.

25. In my view, the allegations and evidence that the Father has raised as to risk are weak. There seems little in what he has deposed to, and in what he has submitted both to me and to the Family Consultant, that gives rise to there being a real risk if the children continue to have time with their Mother. I am also of the view that there is nothing that he has said or deposed to that indicates that there is a risk to the children physically, emotionally or psychologically if they were to return to Victoria.

26. In my view, the children remaining in Queensland, being effectively unable to pursue a relationship, or repair a relationship, with the Mother, does put them at some risk. It also means that the relationship between the Mother and the children really cannot be meaningful. When I specifically asked the Father to address me as to how it was that he said a meaningful relationship could still be maintained between the children and the Mother, given the distance and the current living arrangements, he was unable to articulate that.

27. I note the comments, which I have already set out, made by the previous Family Consultant, about the importance of the Mother’s relationship with the children and the importance that the children have the opportunity to spend meaningful and positive time with her. Clearly, if the Father and children remain living in Queensland, that cannot occur.

28. In relation to the additional considerations as set out in section 60CC of the Act, the Father has said that I should put significant weight on the children’s views that they do not wish to see the Mother at this stage. Firstly, I note that whilst the older two have reported to him that they do not want to see the Mother, and indeed that was the recent comment made by X to the Family Consultant, there is a question about the weight that I should give to those views given the Family Consultant’s concerns that the children were being influenced by the Father.

29. I also note that Y reported that time was proceeding “okay” before it was ceased in Melbourne and that she was “able to recall some positive memories” with her Mother. She appears to have been somewhat influenced by the Father and sister as well. Z said that she misses the Mother and wants to see her. 

30. In terms of the nature of the children’s relationship with each of the parents, I have already made some comments about what has been observed about that. I do not think it is in dispute that the children have a close and loving relationship with the Father. The Father says that there is a fraught relationship between the older two children at least and the Mother. The difficulty, to which I have already alluded, is if there is a fractured relationship between X and the Mother and Y and the Mother, it is difficult to see how that can be addressed with the physical distance between the parties currently.

31. I need to take into account the extent to which the parents have maintained the children, and I note that the substantial burden for the children’s care falls on the shoulders of the Father. The Father sets out that the Mother has provided little by way of child support towards the children. I also need to take into account the likely effect of any change in the children’s circumstances, including if they are separated from either parent or other significant person.

32. Certainly a return to Victoria would be yet another change for the children. However, it would also be a return to a familiar state and there is no reason, in my view, why they could not return to their schools that they were previously attending. Although the Father says he does not want to return to live in Victoria, and does not want to return to live with his parents, there was nothing in his submissions that suggested, other than what he wants, that he could not actually do that.

33. Accordingly, it seems to me there is no impediment to him returning to live with his parents which would mean the children could also return to a home that they are familiar with, and that could occur relatively promptly. If the Father then wanted to secure alternate accommodation in Victoria there is no reason why he could not do that as easily in Victoria as he can in Queensland.

34. In terms of practical difficulty and expense of the children spending time and communicating with a parent, I have already set out at length the practical issues that face the family at this stage if they live at opposite ends of the east coast. Clearly those practical difficulties and expenses will be overcome if the Father and children return to Victoria.

35. There is a dispute between the parties as to the capacity of each of them to provide for the children’s needs. The Father raises, as I have already said, concerns about the Mother’s mental health, concerns about her involvement with the children in inappropriate discussions and the like.  The Mother raises concerns about the Father’s capacity to understand the importance of the maternal relationship with the children and to support that.

36. My understanding is there are not any current Intervention Order proceedings on foot between these parties. I should say I have also had a very short response from the Queensland equivalent of DHHS that says they do not have any protective concerns about the children at this stage.

37. I note that there has been previous DHHS involvement with the children.  I do not have any up-to-date information about that and what is before the Court is that there was a historical involvement with the Department in Victoria.

38. Doing the best I can, and on the evidence that I have before me, and having listened carefully to the submissions that have been made by the parties, in my view it is appropriate that the children and Father should return forthwith to Victoria. The Father is clearly at liberty to bring an application, or to pursue his application to relocate to Queensland. There is no reason why that application should not be conducted in the ordinary way, with the Court having the ability to hear proper evidence from the parties and to properly evaluate the evidence. This will place the Court in a better position to balance and weigh the various proposals and determine the matter not in a truncated interim sense, but to hear the matter properly at a Final Hearing.

39. Having said that, I note that in terms of a relocation application that one of the matters that clearly must be considered is the practicability, and I have already referred to that. In my view, there was nothing that was said by the Father that suggests it could be impracticable for him to return to Victoria. I understand he says it is unpalatable. I also understand he said to me that he will not do so. However, I am going to give him an opportunity to comply with an order that he and the children return to Victoria.  If he does not do that then I will have to consider what other orders need to be made. 

40. Because of the COVID-19 situation I appreciate that it may be difficult to make immediate arrangements for the return of the children. In my view, they should be returned within four weeks, which will take it to 18 September 2020.

41. This is a matter where there are allegations made about mental health and allegations made about risks to the children. We have a 14 year old child who is expressing clear views, and it is clearly a matter where it is appropriate that there be an Independent Children’s Lawyer.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Carter

Associate: 

Date: 18 September 2020