BROOKER & POTTS
[2019] FCCA 818
•1 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BROOKER & POTTS | [2019] FCCA 818 |
| Catchwords: FAMILY LAW – Child aged 8 years old – Interim hearing – unilateral relocation of the mother with the child interstate – assessment of risk – allegations of family violence – severance of any effective level of relationship with the father – best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 60B, 61DA, 65DAA, 4AB(1) Intervention Orders (Prevention of Abuse) Act 2009 (SA), ss.11(1), 36, 26 |
| Cases cited: Goode & Goode (2006) FLC 92-286 |
| Applicant: | MR BROOKER |
| Respondent: | MS POTTS |
| File Number: | ADC 4841 of 2018 |
| Judgment of: | Judge Brown |
| Hearing date: | 22 March 2019 |
| Date of Last Submission: | 22 March 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 1 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dillon |
| Solicitors for the Applicant: | Cifuentes Lawyers |
| Counsel for the Respondent: | Ms Comley |
| Solicitors for the Respondent: | Comley Legal |
ORDERS:
The mother return the child of the relationship [X] born … 2011 (hereinafter referred to as “the child”) to a location within a radius of ten kilometres of the current residential address of the father within thirty five days of the date of these orders.
UNTIL FURTHER OR OTHER ORDER:
In the event that the mother elects to live within a radius of ten kilometres of the current residential address of the father pending finalisation of the proceedings herein the child live with the mother and spend time with the father as follows:
(a)During school terms on alternate weekends from after school or 6.30 pm on Friday until 6.30 pm the following Sunday;
(b)For half of each school holiday period, the halves to be agreed between the parties and failing agreement to be the first half;
(c)On special occasions, including Father’s Day and the child’s birthday to be agreed between the parties.
In the event that the mother elects not to live within a radius of ten kilometres of the current residential address of the father pending finalisation of the proceedings herein the child live with the father and spend time with the mother for half of each South Australian school holiday period the halves to be agreed between the parties and failing agreement to be the first half.
The child spend time with the father, pending her return to Adelaide pursuant to order (1) hereof from 9am Monday 15 April to 5pm Saturday 20 April 2019, with the expense of travel between Victoria and South Australia and return to be borne by the mother.
An injunction issue and each party be restrained from denigrating or abusing the other in the presence or hearing of the said child or permit any other person to denigrate the other party in the presence or hearing of the said child.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner 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 by 29 July 2019.
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.
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.
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.
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 Childrens’ Court;
(b)a child protection authority;
(c)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.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
This matter be listed for final hearing before Judge Brown on 12, 13 &14 February 2020 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.
Further consideration of the matter is adjourned to 21 May 2019 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Brooker & Potts is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4841 of 2018
| MR BROOKER |
Applicant
And
| MS POTTS |
Respondent
REASONS FOR JUDGMENT
Introduction
The normal order of things is that parents love their children and wish to see and interact with them regularly. As a consequence, in the aftermath of parental separation, it is a very significant thing for one parent to move far away from the other parent, with any child of the relationship concerned.
Necessarily, if one parent does wish to move, many factors, both positive and negative for the child, must be considered. These factors deserve close and careful consideration in the event that the parents concerned disagree about the move and come to the court to have their dispute adjudicated.
For those reasons, courts are generally unsupportive of one parent taking things into their own hands and moving away, with a child, before either the parents themselves have reached an agreement or the court has decided the issue of moving, after having considered all the evidence which is relevant.
However, in every case involving arrangements for the care of a child, the best interests of that child are the paramount or most important consideration for the court. This means that the child’s interests are more important than those of any other individual person, involved in the case, including a parent.
Necessarily, human affairs being what they are – regularly messy and unclear, sometimes violent and abusive – there are some cases where the unilateral relocation of a child, with the inevitable consequences of diminution in the quality and extent of relationship with one parent can be justified on the basis of the best interests of that child.
Mr Brooker “the father” and Ms Potts “the mother” are the parents of [X] born … 2011. At present, [X] and her mother are living in an undisclosed location in rural Victoria. [X] has not interacted with her father since August of 2018.
Prior to that time, Mr Brooker and Ms Potts lived together in suburban Adelaide. They married in … 2013. [X] was born in South Australia and lived in this state until her mother removed her from it. The mother does not dispute that she did not have the father’s agreement to move [X] from South Australia.
The parties finally separated, in difficult circumstances, in June of 2017. The father has since re-partnered, as has the mother. It seems clear that the mother’s current partner is also in Victoria.
In my assessment, the mother has been somewhat reticent about the circumstances of her partner and whether those circumstances had any involvement in her significant decision to move [X] interstate away from her father.
However, ostensibly, it is Ms Potts’s case that she had no viable alternative, given that she had been the victim of protracted and endemic family violence at the hands of Mr Brooker, other than to move [X] interstate to provide her with a safe environment.
The mother has provided glowing evidence regarding [X]’s current environment in Victoria and the warmth of her relationship with her siblings and the siblings of her partner. She has also deposed that the school, currently being attended by [X], provides her with a lovely environment.
As perhaps could be anticipated, Ms Potts sees no positives, whatsoever, in [X] returning to South Australia. For his part, Mr Brooker cannot comment on these arrangements, as he had no input in to their making and knows about them only in the generic sense provided to him by Ms Potts in her court documents.
Mr Brooker denies that he is the violent and controlling person portrayed by Ms Potts. To the contrary, it is his case that she was mentally and emotionally abusive towards him, during the parties’ marriage. He categorises Ms Potts as a highly manipulative and dishonest person, who has fabricated allegations of family violence, against him, in order to achieve her wish to move interstate, with [X], without her proposal, with all its implications for [X]’s relationship with him, being subject to both proper scrutiny and some form of input from him.
The father commenced these proceedings, on 21 November 2018, some three months after Mr Brooker had last interacted with [X]. He asked for his case to be listed urgently. However, at this stage, he was unable to personally serve his application on Ms Potts as she had not told him where she was going or how she might otherwise be contacted.
In these circumstances, it was necessary for Mr Brooker to apply for a Commonwealth Information Order, which is a direction to a nominated instrumentality, most usually Centrelink, which holds records relating to the addresses of its various clients, to provide information about the whereabouts of the person named in the order.
Such an order was made, by me, on 13 December 2018. Thereafter, the case was adjourned until 30 January 2019, which was some ten weeks after it had been filed. This regrettable delay can in no way be attributed to any action of Mr Brooker or his solicitor. No doubt, the delay was highly frustrating to Mr Brooker personally.
On 30 January 2019, when the matter returned to court, Ms Comley, an Adelaide solicitor appeared on the mother’s behalf. She indicated that Ms Potts was in the process of applying for legal aid, which would take some time to be concluded.
At this stage, Ms Comley indicated that the case would involve significant allegations of family violence and, in these circumstances, her client was not prepared to countenance of any form of interaction between [X] and her father.
In all these difficult circumstances, the mother was granted 28 days, in which to file her answering affidavit material and the case was adjourned until 19 March 2019. Whether the mother has been granted legal aid is unclear to me.
Mr Brooker has only filed one affidavit in the case.[1] It is a brief document. The most salient paragraphs are as follows:
“The last time I saw my daughter was on 12 August 2018. Before this date, I spent time with [X] on alternate weekends and alternate weeks during school holidays. I had no choice as to the time I could see [X] as this was imposed on me by the mother.
Ms Potts fabricated accusations against me relating to domestic violence to keep me away from [X]. After separation, she insisted that handovers took place at Town A and Town B Police Station. I complied with this demand from her.
Since 12 August 2018, I have had no contact with [X]. I do not know where [X] lives or the school she is currently attending.
I have tried to locate [X] but to no avail. Following separation, I bought a mobile phone for [X] so that I could call her directly but I understand that Ms Potts took the phone from her.
On 27 August 2018, I received a text message from my mother with an attachment showing a message from Ms Potts’s boyfriend to the Sporting Club stating that they were moving back to Victoria with the children.
I have been deeply stressed about the prospect of Ms Potts taking [X] to another state. I have never been consulted about relocation and, in any event, I would not have consented to [X] relocating to another city.”[2]
[1] See affidavit of Mr Brooker filed 21 November 2018
[2] Ibid at [9] to [14]
It is the father’s case that he has a close and loving relationship with [X] and is deeply concerned that he has not been able to see her for over six months. He was not able to spend time with her on either Father’s day, Christmas day or her birthday. This is a source of significant emotional anguish for him.
The father has his own criticisms of Ms Potts, asserting that she abuses illegal drugs and has some form of psychological condition, which renders her liable to extreme mood swings. In these circumstances, he is fearful that [X] may be subject to some form of abuse, at the hands of her mother, if she loses her temper with [X].
The parties were divorced on 21 August 2018, on the application of the mother. In this context, the mother deposes as follows:
“I agree the last time the applicant saw [X] was 12 August 2018. I felt I had no choice but to cease contact on 24 August 2018 as soon as our divorce hearing was over due to the applicant’s outrageous verbal abuse against me at the hearing that he did not in fact have to attend. I felt I had no choice as a mother to do what was right for my daughter and stop the applicant’s smear campaign against me for saying I would no longer submit to his abuse.
I feel the applicant has only now made this application as a way of trying to control me and restrict my happiness.”[3]
[3] See affidavit of Ms Potts filed 12 March 2019 at [24] to [25]
The mother has not specifically responded to the father’s assertion that prior to the divorce hearing of 24 August 2018, he spent time with [X] regularly on alternate weekends and school holidays, in the 12 months or so, which had elapsed since the parties’ separated. Inquiries initiated by me, of the court security staff, indicate that no security concerns were logged on the day in question.
In this context, the mother’s electronic divorce application indicates that there were no current proceedings pending in respect of family violence, child support, family law or child welfare in respect of [X]. Further in answer to the question Are there any existing orders, agreements, parenting plans or undertakings to a court about family law, child support, family violence or child welfare issues concerning any of the parties or children list in this application the mother has indicated No.
In the section of the divorce application dealing with arrangements for [X], particularly in respect of spending time with her father, the mother has indicated the following:
“Every second weekend Friday 6.30 pm to Sunday 6.30 pm. Alternate weeks in school holidays. Share Christmas and alternate Easter.”
She answered, in the negative, regarding the existence of any plans to change this arrangement.
The mother also denies the father’s assertion that he has a close and loving relationship with [X]. In response to the specific paragraph of Mr Brooker’s affidavit, in which he asserts this fact, Ms Potts deposes as follows:
“[the father] has been a poor role model and I feel I am justified in trying to keep myself and my children safe and away from harm.
The applicant has tried to manipulate [X], and her behaviour over the years has deteriorated as a result and I have watched her become extremely self-entitled. The applicant has bought her affection not fulfilled her needs that should be met on an emotional level. She has often said to me “I love you more mummy, but daddy buys me everything I want”. She has also said to me “I only want to live with daddy because I have better toys there”. The applicant has tried to poison [X] against me, her siblings and the rest of my family who all love her very much” [4]
[4] See mother’s affidavit at [38]
In my view, Ms Potts’s evidence does indicate that [X] has some form of relationship with her father. Clearly, the parties disagree as to whether it is a positive or negative relationship. In this context, it is interesting to note that both Mr Brooker and Ms Potts have asserted that [X] has expressed a preference to live with her father.
The mother has further asserted (just as the father has asserted of her) that Mr Brooker is an abuser of illicit drugs, particularly methamphetamines. More significantly, she asserts that she has been the subject of significant family violence over many years. As such, she asserts that she is fearful of Mr Brooker and, as a consequence, had no choice but to remove [X] from his ambit.
Besides [X], Ms Potts has four other children, from an earlier relationship, who range in ages from 17 years to 12 years. She further asserts that these other children have also been subjected to abuse emanating from Mr Brooker. In this context, she deposes as follows:
“I say the [father] has been abusive and constantly gaslighting me and not respecting my boundaries, he dictates what I can and cannot do with [X] even though she is happy and safe in my care. I feel I am within my rights as a human to say I do not want to tolerate any more abuse. I feel I have had to do this for my sanity and my own mental health so I can properly parent my children” [5]
[5] Ibid at [37]
Fundamentally, the case concerns the interstate relocation of a child of tender years far away from one of her parents. In particular, the central issue is whether the clear state of crisis, involving the family, which has evolved since both before and after their separation, in August of 2017, justified the mother’s removal of [X] from the state in which she had lived for the entirety of her life to date and during which period she had regularly interacted with her father, initially in the parties’ home and thereafter on a regular weekend basis.
The nature of an interim hearing
Interim hearings very often arise against a background of serious family crisis and controversy. Obviously this is the situation in the present matter. Given the nature of the particular crisis involved, the court may be required to make any necessary determination expeditiously.
The need for such expedition dictates that the hearing concerned should be truncated. As a consequence, such a shortened hearing does not allow any extensive examination of the relevant evidence, particularly through a process of cross-examination.
Given the nature of the hearing, the various factual issues in dispute, between the parties, cannot be resolved in the context of these interim proceedings. In addition, at the interim hearing stage it is rarely the case that there has been sufficient time for any independent and expert evidence to be prepared, evaluating the case from the perspective of any children concerned, particularly in the context of the nature of their relationship with each of their parents and what is their preferred outcome in the case, if any and what factors are influencing such views.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[6]
[6] See Goode & Goode (2006) FLC 92-286 at 80,901 [68]
Accordingly, at the interim stage, the court is directed to look to less contentious matters, such as any facts which are either agreed or obvious and issues which are not in dispute, particularly prior care arrangements and the current circumstances of the parties and any children concerned.
There are many contentious factual issues in dispute between the parties, in the current matter. These chiefly centre on who of them was the instigator of family violence and the nature of their respective involvement with illicit drugs and the implication of such usage (if any) for the safety of [X].
As a consequence of the insertion of section 67Z into the Family Law Act 1975, each party in family law proceedings is mandated to file a notice of risk document setting out all relevant allegations of family violence and abuse of any child affected by court proceedings. This notice is provided to relevant state based child protection authorities and, in South Australia, results in the production of departmental child protection history, in short form.
In the current matter, two such responses have been received relating to [X], which are dated 28 December 2018 and 19 March 2019. These indicate that [X] is known to the department, but the department itself has not investigated any of the notifications to it as these have been classified as being notifier only concerns.
The only factual circumstances which appear to be concluded with a reliable degree of certainty are the following:
·The mother unilaterally moved [X] interstate and did not tell the father where she was going. In particular, she took steps to change [X]’s school, both in South Australia and more recently in Victoria, without any input from Mr Brooker.
·Ms Potts has made no efforts whatsoever to facilitate any relationship between [X] and her father in the period since she left South Australia;
·Prior to August of 2018, [X] had at least some form of relationship, with her father, which involved regular contact between the two.
How the court determines a child’s best interests
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. They are contained in Part VII of the Family Law Act 1975 “the Act”.
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
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.
In this particular case, subparagraphs (b); (d); (e); and (k); of section 60CC(3) are relevant. These subparagraphs deal with the following issues:
·The nature of the relationship of the child concerned with each of her parents and other relatives, including grandparents;
·The consequences of the changes in the child’s circumstances, including those arising from being separated from one of her parents and other relatives;
·Logistical issues relating to the child spending time with her father. This is relevant given the distance between the undisclosed location, in Victoria where [X] is currently living and the father’s home in suburban Adelaide;
·Any family violence order applicable. In this case, the mother relies on a family violence order, which was made on 19 June 2012, which was prior to the date on which the parties married.
·The subparagraph relevant to family violence orders, subparagraph (k) directs that the court can take into account the following matters arising from any applicable family violence order:
oThe nature of the order;
oThe circumstances in which the order was made;
oAny evidence admitted in proceedings for the order;
oAny findings made by the court in the relevant proceedings;
oAny other relevant matter.
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.
Parental responsibility
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 [section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
In his final orders, the father seeks the application of the presumption to [X]. The mother seeks that she should have sole parental responsibility for [X]. She has no proposals for the father spending time with her and her application is silent in respect of any interim application.
Given the polarised positions of the parties, even after a rudimentary analysis of the various section 60CC factors applicable, it is apparent to me that it would be inappropriate to apply the presumption at this interim stage.
From the father’s perspective, he is anxious, at all costs, to re-engage with [X]. In the longer term, he submits that the only viable mechanism through which he can maintain some level of meaningful relationship with her, is if she lives in reasonable proximity to his home. He has no desire to live in Victoria.
On the other hand, it is the mother’s position that issues relating to her safety and that of [X] dictate that she and the child should continue to live in Victoria. In these circumstances, she has not fleshed out, with any detail, any proposals for [X] to maintain some form of relationship with her father.
More recently, when it has been mooted with her that there is at least a possibility the court will order a child to return to South Australia, she has proposed [X] spending time, with her father, over the Easter period, subject to the supervision of a person identified as Mr C or the paternal grandmother. This time includes a block period of time from 3:00pm on 9 April until 10:00am on 12 April 2019.
Relocation Cases
Given the structure of Part VII of the Family Law Act, particularly in matters where the presumption of equal shared parental responsibility applies, cases involving one parent wishing to move a major distance away from the other parent concerned raise significant issues for the court and the parties concerned. Such cases throw up competing principles, which are difficult to reconcile.
On the one hand, one of the purposes of the Family Law legislation is to provide former partners with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children, in the now changed circumstances following the end of the marital or de facto relationship between them. There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both of his or her parents, regardless of the fact that the parents concerned chose not to live together. As such, it has been said that relocation cases need careful analysis.[7]
[7] See C & S [1998] FamCA 66
The Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.
Relocation has implications for the quality and intimacy of the parental relationship a child has with the absent parent. These concerns are particularly pressing in respect of young or immature children. In this particular case, I bear in mind what was said by Boland J in Morgan & Miles.[8] Her Honour confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“…It [is] highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases”.
[8] Morgan & Miles (2007) FamCA 1230
The difficulty arising in this case is that Ms Potts has already moved, with [X], to Victoria. It would seem to be the case, at least in part, she has done so for legitimate reasons relating to her and her current partner’s preference as to their living arrangements. The Full Court has described a person’s right to live how and where they choose as being a perfectly legitimate right.[9]
[9] See Adamson & Adamson [2014] FLC 93-622 at 79,699 at [59]
However, the effect of Ms Potts exercising this right unilaterally, without prior reference to Mr Brooker, is that necessarily the move has had consequences for [X]’s own entitlement to have the benefit of having both her parents meaningfully involved in her life, to the maximum extent consistent with her best interests. [see section 60B(1)(a)] and her right to know and be cared for and to spend time on a regular basis with both of her parents and other relatives, who are potentially significant to her. [see section 60B(2)(a) & (b)].
As the High Court has pointed out in such cases as U & U[10] the High Court has indicated that it is legitimate in assessing where a child’s best interests lie, to consider whether a parent could relocate to the location of choice, of the other parent concerned, rather than restrain the latter parent from moving at all.
[10] U & U [2002] FLC 93-112
In this case, in effect, Mr Brooker seeks an interim order which would either require the mother to return to South Australia, against her will or, in the alternative, that [X] is placed in his sole care, if Ms Potts is not prepared to return to live in South Australia, pending the final outcome of the case.
This issue raises the issue of whether the court has the authority to make what is termed a coercive order – that is an order which directs a parent to live in a particular location although it is patently the case that such an outcome would not be palatable to the individual concerned. It is clear that the court does have such authority, although it is to be utilised sparingly and carefully.
In Sampson & Hartnett (No10)[11]
[11] Sampson & Hartnett (No 10) (2007) FLC 93-350 at 82,016 [57] – [59]
“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?”
The difficulty arising in this case is that if Ms Potts declines to return to live in South Australia, pending the resolution of the respective applications of the parties, in the context of the court deciding that [X]’s best interests require her to spend regular periods of time with her father, the court will have no alternative other than to place the child in Mr Brooker’s care pending final hearing.
Accordingly, one of the conceivable outcomes, of this case, at the interim hearing stage, is that the court will be compelled to give Ms Potts an election. Either she elects to return to a location closer to the father, so that she can continue in her role as [X]’s primary carer and the child can also see her father regularly or she elects to remain living in her preferred locale but [X] is placed in the father’s predominant care.
I appreciate that this may be a stark and hitherto uncontemplated outcome for Ms Potts, who no doubt has necessarily concentrated on her preferred outcome. It also has significant implications for her other children, who are not the subject of these proceedings. However, it is clear that the court is required to consider all possible outcomes in its deliberations.
In addition and significantly, it is also axiomatically the case that, to a certain extent, this unpalatable situation, for Ms Potts, has come about because of her unilateral actions, which she acknowledges were not taken in consultation with the father and do not seem to have given any thought to how [X] might maintain some form of relationship with her father.
Accordingly, in this context, the issues of family violence become pivotal. Are issues relating to the fundamental safety of both Ms Potts and [X] herself such that the court should retrospectively validate the mother’s move of the child interstate on the basis of protective concerns.
Family violence
The concept of family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
Family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person. In this case, it is the mother’s position that the father has, through his conduct, subjected her to such coercion.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.
Family violence is not homogeneous in its qualities and can arise in a variety of contexts. It is also recognised that family violence is prevalent in all walks of Australian society and represent a great threat to the wellbeing of children. It also very often occurs behind closed doors and accordingly its independent verification may be problematic.
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Obviously the latter behaviour is the more damaging so far as children are concerned.[12] Not all incidents of family violence will be necessarily damaging for a child.
[12] See JG & BG (1994) 18 Fam LR 255 at 261
The father acknowledges that he is the subject of a family violence order. It is also the case that he has come to the notice of the police, in the past, in respect of complaints made by the mother and has been subject to sanction. However, he denies the gravamen of the mother’s claims against him, and as previously indicated, asserts that she has been violent towards him.
Accordingly, it will be necessary for the court to assess the evidence currently available to it to gauge the level of risk, arising for [X], of her being exposed to family violence or some other form of abuse, emanating from either her father or her mother and quite possibly both of them.
The assessment of risk
In this case, the court has to undertake its assessment of risk, at an interim stage of proceedings, prior to the provision of any comprehensive family report. It must also do so when the stakes are extremely high, involving as they do issues of interstate relocation, which themselves have not been subject to any thorough level of scrutiny.
Accordingly, at the interim stage, it is difficult, if not impossible, for the court to characterise episodes of family violence or make precise findings in respect of allegations made in respect of a child suffering some form of neglect and/or abuse.
However, given the structure of Part VII, particularly its emphasis on protecting children from the consequences of exposure to any form of abuse or neglect, the court cannot disregard such allegations because of the inevitable evidentiary difficulties, which arise at the interim stage, in definitively resolving the controversies arising.[13] Rather the court must “weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected…”
[13] See SS v AH [2010] FamCAFC 13
In Deiter & Deiter[14], the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
[14] See Deiter & Deiter [2011] FamCAFC 82
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; and possible risks relating to the exposure of a child to an angry and unpredictable parent.
All these risks are present in the current case, as is the risk of depriving the child of having a parent being fully involved in their lives and care because of a potentially unjustified unilateral action of the other parent in taking the child concerned interstate. The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [15]
[15] Slater & Light [2013] FamCAFC 4 at [37]
Finally, in the context of relocation, the court should be alive to the possibility of a parent moving back to some location, which is not otherwise palatable to him or her. In relocation cases, it is the best interests of the child which are paramount, not the interest of the parent concerned. In U v U Hayne J pointed out
“… it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.” [16]
[16] U & U 2002 FLC 93-112 at 89,103
Discussion
It is now necessary to analyse, as best as is possible in the context of this truncated proceeding, the evidence relating to the allegations of family violence made by Ms Potts, including any documentary evidence supportive of her allegations.
The mother concedes that she and the father began their cohabitation in late 2011, shortly after [X] was born. She was granted an intervention order, apparently on the application of police, on 19 June 2012. The order prohibited the father from:
·Assaulting, threatening, harassing or intimidating the mother;
·Damaging or interfering with premises occupied by the mother;
·Damaging property owned by the mother;
·Any firearm licences held by the father were cancelled and he was directed to surrender any firearm in his possession.
The mother has not supplied any specific evidence regarding why the order was granted. It is also unclear whether the order was granted after the taking of evidence or the making of any particular findings of violence. There was apparently an earlier interim intervention order. The order stipulates that it cannot be subject to further court application for a period of twelve months.
More recently, in order to support her position the mother has provided a medical note, cursory in nature, recently obtained by her, which indicates she attended upon her general medical practitioner on 28 June 2012 in order to receive the results of tests. [17]
[17] See mother’ affidavit filed 20 March 2019 at P 3
In this context, she has asked of her doctor: “could stress have anything to do with it?” This led to a discussion between doctor and patient regarding relationship problems including the mother’s need to have the father “arrested for assaulting her”. In this context the doctor further notes that the parties have been referred for relationship counselling.
The intervention order does not seem to have prevented the parties from resuming their relationship after it had been granted. The order is governed by the provisions contained in the Intervention Orders (Prevention of Abuse) Act 2009 SA.
Pursuant to section 11(1), an intervention order, issued under the Act, remains in force until it is revoked. Pursuant to section 36, a police officer may arrest a person, without warrant, whom the officer believes has contravened an intervention order.
The mechanism for revoking an intervention order is provided by section 26. The following may apply to revoke such an order:
·A police officer;
·The protected person;
·The defendant.
Pursuant to section 26(5), before revoking an order the court must allow each person, affected by the order, an opportunity to be heard.
The major incidence of violence, of which the mother complains, in her current affidavit material, occurred on Anzac Day in 2013, after the grant of the relevant intervention order. It led to the father’s arrest by police and his remand in custody for a period of weeks.
The mother has deposed that she was yelled at by the father and physically shoved. This behaviour happened in the presence of her children and [X], who was seven months old at the time. She also complains that the father broke a screen door, after he had gone outside for a cigarette, during which time, she had called the police.
The medical notes, referred to above, indicate another general medical practitioner attendance, by the mother, on 8 April 2013, in which she discloses having been shoved by her partner, in the chest and then shoved against a piece of furniture. She complained of pain and was provided analgesia. She further discloses that her partner was in custody. Accordingly, it seems probable that this is the Anzac Day incident.
The mother concedes that she “dropped the charges [against the father] roughly three weeks after the assault occurred.” Her evidence also indicates that the parties resumed living together in … 2013 and subsequently married on … 2013. I acknowledge that frequently victims of family violence, for a variety of circumstances, reconcile with their assailants, and this, of itself, does not abrogate from the seriousness of the conduct involved.
However, bearing in mind the provisions of section 60CC(3)(k), I note the lack of clarity as to whether there was any particular finding, by a court, in respect of the circumstances, which led to the granting of the order and whether the father contested the necessity to make the order.
To my mind, it is also a relevant factor that the parties resumed their relationship and indeed subsequently married after the granting of the order. It is also significant, I think, that the order is now approaching seven years old. Ms Potts describes the order as being a lifelong intervention order and, in one sense so it is but this is not necessarily indicative of the severity of the conduct which led to its granting.
I am aware that the fact alone that the parties had sufficient confidence, in one another, to marry, is not indicative that their relationship was violence free or not subject to factors of coercion and control. However, at the same time, the existence of the marriage does indicate some level of trust between them. The evidence also indicates that there was no further involvement of police, in their lives, until the time of their separation.
Neither party has provided any explanation as to why there were no apparent attempts to revoke the 2012 intervention order, given the changed circumstances surrounding their marriage. It is not beyond the bounds of possibility that neither thought it necessary or that the existence of the order was overlooked or indeed that one or other of them considered it otiose, given they had married and were living in the same household.
In summary, it seem likely that there were some significant incidents of violence between the parties in 2012 and 2013 resulting in serious police involvement. However, the parties nonetheless resumed their relationship and there is no specific evidence of further police involvement until their separation. The effect of the South Australian legislation is the intervention orders remain in force indefinitely until specifically revoked. They do not lapse through the effluxion of time or have any specific sundown provision.
The parties have different views as to the factors which led to their separation in June of 2017. The mother asserts that the police removed the father from the parties’ shared home by police, following his abuse of her. I have not been provided with any documentary evidence in respect of the police involvement.
As I understand the mother’s case, she asserts that following separation, she was subject to on-going family violence, including the following:
·The father tracked her through a mobile phone, which he had given to [X]. This led her to smash the phone;
·The father abused her, in the presence of [X], on 6 April 2018;
·He has sent her abusive text messages, referring to her as a narcissist, lying scum and manipulative piece of shit;
·The father was abusive towards her at the parties’ divorce hearing;
·The father has made postings on facebook of a denigratory and abusive nature about her and her partner and engaged in on line discussions indicating his frustration with the family law system in Australia;
·The mother asserts that these postings, which identify her personally, have exacerbated her fragile mental state.
In the context of these allegations, the mother relies on the fact that the father’s application to revoke the 2012 order was unsuccessful. The implication being that someone in authority was convinced about the need to continue the order’s currency because of the potency of the threat posed by the father to the mother.
One of the evidentiary difficulties in this case arises because the father, by dint of his circumstances, was compelled to file his application without knowing the full gravity of what would be alleged against him. Necessarily, his affidavit was both brief and hurriedly prepared.
Then, due to the need to proceed with his application with expedition, he has not been able to respond to the mother’s late filed material. He has been disadvantaged, in my view to a significant degree, in the conduct of this case, because of the mother’s unilateral actions, particularly her self-concealment.
In this context, the father has not provided any evidence regarding his application to revoke the intervention order. The mother has, however, provided some documentary evidence, which has been made available to her in the context of this application.
The father’s application was self-prepared and dated 6 April 2018. A court official has apparently entered the hearing time as 11 April 2018. The application reads as follows:
“Clear name. I was found not guilty in the courts plus charges were dropped by the accuser. All the accusations towards myself never took place. Didn’t happen.”[18]
[18] Ibid at P 2
Thereafter the mother has provided what is described as a statement of herself which indicates it is being provided to a police officer at Town B on 6 April 2018. The document is not sworn, although it has the capacity to be attested. In the document, Ms Potts asserts she and Mr Brooker had an argument over the telephone in respect of the possibility of [X] attending her step daughter’s eighteenth birthday party.
She asserts that he was aggressive and argumentative and vilely abusive towards her. Her complaint is summarised in the following extract:
“The way Mr Brooker spoke to me and yelled at me and the things he was saying about my family has made me feel harassed and intimidated. He repeatedly called me things like a ‘cunt’ and a ‘fucking whore’ and he was yelling these things in a very aggressive way. This made me feel anxious and harassed. It has caused me significant mental harm and added to my anxiety.”
The next thing, which apparently occurred, was that Mr Brooker’s application (or possibly some other proceeding involving him) was listed for hearing on 23 May 2018. The letter informing Ms Potts of this appointment also advised her that she did not need to attend court. I do not know what the outcome of this hearing was in specific terms. Accordingly, I do not know if any evidence was taken or any findings of fact made. Importantly I do not know if Mr Brooker himself attended. The contents of Ms Potts’ unsworn witness statement are not congruent with the statements provided in her Divorce Application which was filed on 20 June 2018.
From my perspective, the evidence available to me, in respect of the various interactions occurring between the parties, since the date of their separation, is fragmented, incomplete and contradictory. I am uncertain whether there has been any recent finding, by a relevant court with authority to issue family violence orders, regarding the father’s conduct towards the mother.
I have further considered the posting made by Mr Brooker on Facebook. They are unfortunate and inflammatory in their content. As such they do no credit to Mr Brooker. However, it is clear that the postings were made after Ms Potts and [X] had, to all intents and purposes, disappeared from South Australia, against a background in which Ms Potts had indicated, both to SAPOL and in her divorce application that Mr Brooker had been spending regular time with [X].
In these circumstances, in my view, it is not surprising that Mr Brooker would give in to the impulse to vent his frustration on the internet. This is not to excuse his behaviour but provides both a context and explanation for it, which is the response of an angry but powerless person, who did not know when and where he was likely to interact with his child. For obvious reasons, such situations are likely to precipitate a strong emotional response.
In anticipation of these proceedings, the mother has undergone a voluntary drug screen test, on 7 February 2019, which is negative for illicit drugs but positive for benzodiazepines, which have been prescribed for her.
Ms Potts has also provided a report, dated 6 February 2019, from her treating psychologist, Ms D, who indicates that she has been consulted by Ms Potts since March of 2018 in the context of the end of an abusive relationship, which has resulted in anxiety. Ms D opined that the mother did not have any mental health disorders, apart from anxiety, or any other issues relating to substance abuse.
In my assessment, the family violence issues, confronting Ms Potts in mid-2018 were not of such moment to justify the unilateral relocation of [X] far away from her father, particularly given the child’s previous level of relationship with Mr Brooker.
Ms Potts had the protection of a family violence order; she had the potential for psychological support from Ms D. She was otherwise well-settled in South Australia. Essentially, she did not have to move [X] away from the Adelaide area, in the absence of any application to the court, to ensure an objectively safe level of protection for herself and [X].
The allegations she makes are serious. The father denies their gravamen. In my assessment, there is scant recent cogent evidence to indicate the father poses a significant risk to either the mother or [X]’s safety if appropriate arrangements are made in respect of handover arrangements and other orders of an injunctive nature are made, regarding all forms of public denigration of the other. In my view, this conclusion is open to me given the mother has acknowledged that, in the first twelve months of separation, the father interacted regularly with [X] on weekends and during school holidays.
In this context, it appears clear to me that [X] is likely to derive some level of benefit from interacting with her father regularly and indeed other members of her paternal family. The mother’s evidence gives tacit recognition to the fact that [X] does indeed love her father. The difficulty, with the mother’s position, is that her unilateral actions have effectively severed the relationship between [X] and her father.
Amongst the additional considerations regarded to be weighted by the court are the attitude demonstrated by the parties concerned to the responsibilities of parenthood [section 60CC(3)(i)]. Also relevant is the capacity of parents to support the emotional and educational needs of their children [section 60CC(3)(f)].
In my view, one of the necessary prerequisites of a competent parent, is a capacity to support and encourage an appropriate level of relationship with the other parent concerned. Since her departure from South Australia, it is axiomatic that Ms Potts has done nothing at all to support [X]’s relationship with her father. If Mr Brooker had not commenced these proceedings, he would have been removed, perhaps indefinitely, as an influence in [X]’s life.
In addition, Ms Potts has accorded scant recognition to Mr Brooker’s entitlement to be play a role in making decisions regarding [X]’s long-term care, welfare and development. She enrolled [X] in a school of her sole selection. She still has not provided any details in respect of it or provided information, in the form of a report, regarding how [X] is progressing at school.
The difficulty with the current situation is that whatever is the outcome in the short to medium term, it will have invidious consequence for [X]. If she remains in Victoria, it will be difficult for her to maintain the same level of relationship which she previously enjoyed with her father. [X] is likely to be restricted to being able to see her father in school holidays.
On the other hand, [X] has been living in Victoria since August of last year, which cannot be regarded as an insignificant period of time. In this period it is more likely than not that she has become settled in her new home and school. In addition, she will have adjusted to living with her mother’s partner and his children. Necessarily, any change to this regime will be upsetting to [X] [see section 60CC(3)(e)].
However, the relevant subparagraph directs the court to consider, in particular, the likely effect on the child of any separation from a parent. One of the most severe consequences of Ms Potts’s actions has been the severance of any effective level of relationship between [X] and her father.
If the mother is compelled to return to live in South Australia, pending the resolution of this case, she is hardly likely to be well disposed towards Mr Brooker. Such an outcome will also most likely have financial implications for her and other consequences for her relationship with her partner. None of these consequences is likely to be positive and will only lead to a more intense level of conflict between the parties, which cannot be helpful for [X].
In my view, it also noteworthy that much of the delay arising in this case can be related to Ms Potts’ efforts to conceal her whereabouts from the father. She did not bring her own proceedings to seek approval for her actions. Rather, she waited for the father to bring his case. In these circumstances, Mr Brooker was compelled to seek an information order. There were other delays attributable to the court system.
In addition, as is invariably the case, the mother has focussed, in both her evidence and her submissions to the court, on her need to remain in Victoria. In these circumstances, she has not provided any evidence regarding the idiosyncratic difficulties which will arise if there is an outcome in the case which is not of her preference.
In addition, as I have already observed, I have no clear authority to direct Ms Potts to live in a particular location. My authority is limited to orders in respect of living arrangements for [X] personally. There are likely to be significant emotional consequences for [X], if her living arrangements are upturned dramatically.
However, precipitate and unilateral parenting decisions have the potential to result in extreme outcomes. In general terms, the court has an obligation to eschew self-help, which has the potential to lead to chaotic parenting arrangements for children.
In this context, in my view, there are also public policy considerations arising in this case. Australia is a large country. It is also a country which values the freedom of its citizens to live how and where they choose.
One of the purposes of the Family Law Act is to provide mechanisms which allow citizens, who are also parents and spouses, to end their relationships as spouses and put into place sensible and ordered regimes to divide their property and parent their children on relationship breakdown.
Given the open and pluralistic nature of Australian society, the occurrence of relationship breakdown is high. For all sorts of reasons, which are beyond the scope of this judgment, the appropriateness of arrangements, for children, post separation, are frequently highly controversial, not only between the parents concerned but also as between various interest groups.
In these circumstances, as the High Court has indicated, each family law case involving a relocation aspect requires close, careful and idiosyncratic consideration. Frequently, such careful consideration will not be possible if one parent has already engineered the outcome favoured by him or her at an earlier stage.
In my view, it has the potential to bring the law into disrepute if there is a perception that parents can secure an unfair advantage by moving unilaterally with children in any subsequent proceedings. At the same time, given the structure of the Act, the court cannot disregard issues of family violence. A balance must be struck between these competing considerations.
In this case, after having, I hope, carefully considered the evidence relating to family violence, which I concede is fragmented and incomplete, I do not consider it would constitute an unacceptable risk to [X] that she spend regular periods of time with her father. Further, given the unilateral nature of the mother’s relocation of the child interstate, I am not of the view that the situation facing Ms Potts was of such urgency or extremity to justify her actions.
It is not appropriate for the presumption of equal shared parental responsibility to be applied at this interim stage for all sorts of reasons but chiefly the polarised positions of parties and their extremely poor parental relationship. It would be neither reasonably practicable nor likely to be in [X]’s best interests for there to be either an equal time or substantial and significant time spending regime.
For these reasons, I have come to the conclusion that the child should be returned to South Australia and live in a location reasonably proximate to the father’s residence pending the outcome of the parties’ competing final applications. If Ms Potts elects to live in South Australia, [X] should continue to live with her and spend alternate weekends and half school holidays with her father.
If Ms Potts elects to remain living in Victoria, [X] should live with her father and spend half of each school holiday in her mother’s care, notwithstanding the obvious detriments of such an outcome. I also appreciate that Ms Potts will need some time to organise her affairs in Victoria, if she elects to return to South Australia.
I propose allowing her a period of thirty five days to do so. In my estimation, there is no impediment to Mr Brooker and [X] spending some time with one another, including overnight time, in the forthcoming Easter holiday. In my view, given the period which has elapsed since [X] last saw her father, the two need to re-connect as a matter of urgency.
The usual response to cases involving relocation on an urgent basis is to expedite the final hearing concerned. As I have already observed, neither party has considered a Plan B to their preferred interim outcome, which each has hoped, particularly the mother, will render any final hearing otiose. Given these circumstances, I appreciate that the orders I am going to make must be considered blunt. However that is largely attributable to the fact that neither party is in a position to offer alternatives.
The essential rationale of the orders, which I propose to make in these interim proceedings, is that relocation issues, except in extreme circumstances, are to be resolved at final hearing, not earlier in a situation which has been engineered prematurely by the party wishing to relocate. However, in deference to the urgency and precariousness of the situation facing the mother, I will fix the case at the earliest opportunity available to me.
I have no further trial listings available in 2019. I will allocate three days for final hearing at the earliest opportunity available to me in 2020 and order that a family report be prepared to be released on or before 29 July 2019.
The matter will be listed for further directions on 21 May 2019 at 9:30am to ascertain what election the mother has made and to make any orders needed to clarify the orders proposed for [X] to spend time with each of parents. I will also deal with any application brought by the father in the event there is any noncompliance with the orders to be made.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 1 April 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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Standing
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