CERWIN & CERWIN
[2013] FMCAfam 160
•30 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CERWIN & CERWIN | [2013] FMCAfam 160 |
| FAMILY LAW – Interim arrangements for care of children aged thirteen and six – unilateral relocation of children from Adelaide City B by mother – applicant father seeks the return of both children to Adelaide – applicant father of younger child but not older child – older child’s father (second respondent) lives in City B – respondent mother and second respondent opposes return of children to Adelaide – mother alleges older child has recently disclosed applicant has physically abused him – allegations remain under police investigation – father alleges mother has psychological and substance abuse issues which compromise her parenting – nature of interim hearing – principles relating to relocation – best interest considerations – presumption of equal shared parental responsibility. |
| Family Law Act 1975, ss.60CC; 61DA |
| C & S [1998] FamCA 66 Morgan & Miles (2007) FamCA 1230 Godfrey v Saunders 208 FLR 287 |
| Applicant: | MR CERWIN |
| Respondent: | MS CERWIN |
| File Number: | ADC 4232 of 2012 |
| Judgment of: | Brown FM |
| Hearing date: | 30 January 2013 |
| Date of Last Submission: | 30 January 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 30 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Eid |
| Solicitors for the Applicant: | Adelaide Family Law |
| Counsel for the Respondent: | Mr Anderson |
| Solicitors for the Respondent: | Harry Alevizos |
| Counsel for the Other Party: | Ms Leis |
| Solicitors for the Other Party: | Mellor Olsson |
| Counsel for the Independent Children’s Lawyer: | Ms Charlesworth |
| Solicitors for the Independent Children’s Lawyer: | Hume Taylor & Co |
ORDERS
The proceedings be fixed for final hearing for three days on 7, 8 and 9 August 2013 at 10:00am.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 10 July 2013.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 24 July 2013.
The independent children’s lawyer file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 24 July 2013.
On or before 24 July 2013 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.
The independent children’s lawyer file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 24 July 2013.
On or before 24 July 2013 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates 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 10 May 2013.
The Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.
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 Child Dispute Co-ordinator.
UNTIL FURTHER OR OTHER ORDER
The children W born in 1999 (hereinafter referred to as “W”) and X born in 2007 (hereinafter referred to as “X”) live with the mother in City B.
The child W spend time and communicate with the second respondent Mr V, W’s father, at times to be agreed between him and the mother.
The father spend time with X as follows:
(a)On two occasions during each school term on weekends with one such weekend to be in Adelaide and one such weekend to be in City B with the weekends to be agreed between the parties and failing agreement to be as follows:
(i)The third weekend following the recommencement of the applicable school term in Adelaide from 3:30pm on Friday until 4:30pm the following Sunday with the times to be calculated by the time the child’s aircraft firstly departs from City B for Adelaide and secondly departs from Adelaide for City B.
(ii)The seventh weekend following the recommencement of the applicable school term in Adelaide from 3:30pm on Friday until 4:30pm the following Sunday.
(b)For the first half of each school holiday period, in Adelaide, the halves to be calculated to run from 10:00am on the first Saturday following the conclusion of school in each term and to conclude at midday on the middle Sunday of the holiday; and
(c)From 2:30pm on Maundy Thursday until 4:00pm on Easter Saturday.
The father spend time with the child W at the same times and subject to the same conditions as his time with the child X subject to W wishing to spend time with the father.
The father be responsible for his costs of accommodation when spending time with the children in City B.
The father pay the children’s travel costs for the visits specified in order 15(a)(i) and (c).
The mother pay the children’s travel costs for the visit specified in order 15(a)(ii).
The parties share the children’s travel costs for the visit specified in order 15(b).
The father pay the children’s travel costs for the visits specified in order 15(c).
The father have telephone communication with the child X on two occasions each week with the times to be agreed between the parties and failing agreement to be 6:30pm on each Wednesday and Saturday with the father to make the call to the mother’s telephone number with the mother to ensure that the child is available to take the father’s call on each such occasion.
The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the children or from permitting any other person to do so.
The parties be restrained and an injunction issue restraining them from discussing the proceedings in the presence of the children or from permitting any other person to do so.
The parties be restrained and an injunction issue restraining them from physically disciplining the children when they are in his or her respective care.
The parties be restrained and an injunction issue restraining them from consuming marijuana or consuming alcohol to excess during any period the children are in their respective care or twenty four hours beforehand.
The mother authorise each school attended by the children from time to time to give the father all necessary information concerning the children’s educational progress and other related activities and supply him with copies of reports, photographs, certificates and awards obtained by the children (at the expense of the father).
The mother and father shall:
(a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children; and
(c)Inform the other parent as soon as is reasonably practicable of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.
Liberty to apply at short notice in respect of any issues arising as a consequence of these orders.
The reasons given today be transcribed and provided to the parties.
Further consideration of this matter is adjourned to 24 May 2013 at 9:30am when it is anticipated the family report will be to hand.
IT IS NOTED that publication of this judgment under the pseudonym Cerwin & Cerwin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 4232 of 2012
| MR CERWIN |
Applicant
And
| MS CERWIN |
Respondent
REASONS FOR JUDGMENT
Introduction
The reasons for judgment concern what lawyers call an interim relocation case. Relocation cases arise when one parent wishes to live far away from the other parent of the child or children concerned. It is such children who necessarily must be the persons most affected by the court’s decision, particularly whether to ratify the move or not.
Given the nature of relocation cases, it is impossible for the court to make an order which will satisfy all the parties involved. The various options available cannot be manipulated like the surface of a Rubik’s cube to produce a perfect result.
This is a particularly difficult case involving many issues. It is also a case of unilateral relocation – that is one parent has moved with the children concerned without first either seeking the other parent’s approval or an appropriate court order. The court ordinarily is disapproving of such help unless there are particularly unusual circumstances in the case or a situation of some emergency.
Mr Cerwin, the applicant in these proceedings, and Ms Cerwin, the first respondent, are the parents of X, born in 2007. The applicant and respondent began their relationship in 2004 and married in 2006.
Ms Cerwin is also the mother of W, born in 1999. W’s father is Mr V, who is the second respondent. I will refer to Mr Cerwin and Ms Cerwin as the father and mother respectively in these reasons for judgment, although, as I have already pointed out, Mr Cerwin is not the biological parent of W.
Until they separated on 22 October 2012, the father and mother and W and X lived as a family in Suburb T in suburban Adelaide. On this day, the mother and children moved to City B, where the mother has lived before and where her parents live. She did not discuss the move with Mr Cerwin.
The father now, in effect, wishes to undo the mother’s move of the children to City B. The mother wishes the court, in effect, to retrospectively approve her move and the living arrangements for the children which have followed.
It is the mother’s case that at the time she had nowhere else to go but to her family in City B, as she was compelled to flee a dysfunctional and abusive relationship with the father. It is her case that neither child has a particularly close connection with the father, as she has always been the children’s main provider of care, and Mr Cerwin has worked what she describes as being “obsessively long hours”.
Mr V was joined as a party to these proceedings at an early stage. He lives in City B. In the past, he and the mother have not had a particularly easy relationship with one another and he has been critical of her for not supporting the paternal relationship between him and W. However, with the mother’s dramatic change of circumstances, he is now delighted that W is currently living in City B and he is able to see W regularly. He wishes this state of affairs to continue.
Mr Cerwin asserts that he was significantly involved in caring for both children, as the mother has longstanding psychological and substance abuse problems. He believes that these alleged difficulties disqualify Ms Cerwin from being the children’s primary custodian. More importantly, he fears that he will not be able to maintain a significantly warm and intimate relationship with the children, particularly X, given the distance between Adelaide and City B and the cost of travel between the two locations.
It is about 650 kilometres by road between Adelaide and City B and a much shorter distance by air. Although the parties have each filed more than one lengthy affidavit, the affidavits being highly critical of the other parent concerned, neither has provided actual evidence about the costs of air tickets between the two locations at the moment.
As a result, I have looked up fares on the internet. I do not claim that my survey of those fares is exhaustive, but from what I can glean the cost for a child to fly one way seems to be around $183. The cheapest fare can be around $123. At times, there has been a promotional fare of $99. If a child travels unaccompanied, there is a $33 booking fee.
Ms Cerwin is in receipt of social security at present. Mr Cerwin is a modest income earner, who is currently paying the mortgage on the parties’ family home and child support for X. If he came to City B, although he has lived there in the past, he would have to stay in a motel and pay for his accommodation.
Pending any necessary final hearing, the father wishes the children to return to live in Adelaide. If the mother also returns to Adelaide, he concedes X and W should live mainly with her, but see him regularly. However, if the mother is not willing to return to Adelaide, he wants orders made resulting in the children living with him in the parties’ former family home.
The mother, needless to say, wishes the children to remain living with her in City B. She has fairly undeveloped proposals for the children to spend time with their father in this eventuality, but asserts X could maintain an appropriate level of relationship with her father through holiday contact and, perhaps, some mid‑term periods.
W suffers from high functioning Asperger’s syndrome. The mother asserts that this condition has led to friction between the father and W in the past, as Mr Cerwin has been unable to manage W’s, at times, challenging behaviour.
Importantly, Ms Cerwin alleges that once W arrived in City B he had disclosed to her that the father has regularly beaten him and has taunted and threatened him, as well as obsessively observed him showering in the bathroom.
These complaints are the subject of a child abuse notice, which was fairly recently filed on 22 January 2013. The mother has also made a complaint to police about the father’s alleged conduct, and W has been apparently interviewed by police officers. However, I have not been provided with a transcript of this interview and so do not know what the child has disclosed to police, if anything at all.
In addition, a decision has not yet been made as to whether or not Mr Cerwin will be charged with a criminal offence. The papers in question have been referred to the prosecution division of the police at Suburb Y, which is near where the parties formerly lived.
As I say, Mr Cerwin is not W’s biological father. W is 13 years of age. The mother asserts that W has said to her he will commit suicide if compelled to return to Adelaide against what she says are his strong wishes.
The mother asserts that she has nowhere to live in Adelaide and no reasonably accessible sources of family and emotional support there. As a recipient of social security, she says she would struggle to find suitable accommodation for herself and the children in Adelaide.
During the interim hearing, which took place on 25 January 2013, the father indicated that he was willing to vacate the former family home in Suburb T, but only if Ms Cerwin was able to pay the outgoings in respect of the property, including the mortgage, which is about $350 per week. It is his case that if this occurred he would need funds to reaccommodate himself.
Accordingly, with the mother’s unilateral move to City B, whatever is the outcome in the interim, that is, the children remaining in City B or returning to Adelaide, there will be massive logistical problems and expense which are the parties are ill equipped to meet.
In addition, although it is trite to point out, whatever is the outcome one party will be bitterly disappointed and think the result is unfair to him or her. Once the metaphorical egg of the parties’ previous marital situation has been scrambled by the mother’s departure from Adelaide, it cannot be unscrambled.
Mr V, for obvious reasons, supports the mother’s position. He thinks W will be better off in City B, where he can see him regularly. He has no position in regard to X other than if she returns to Adelaide, he wishes orders made which would see W living with him in City B.
Mr Cerwin commenced the case in November 2012. Over the period of Christmas, arrangements were made for him to visit City B to see X on two occasions, which were between 26 December and 31 December 2012, and 14 January 2013 and 19 January 2013 respectively. Similar orders were made in respect of W, but with the additional order that this time be subject to his wishes.
From both parties’ perspectives, but particularly the father’s, this was a holding exercise only. With the start of the 2013 academic year, a decision must be made whether the children will return to their old schools in Adelaide or stay at their new school in City B. This is the reason why the case is now requiring urgent decision.
Since the proceedings began, given the obvious complexity of the issues arising, it has been ordered that X and W be independently represented in the case. The children’s representative is Brendan Bowler, an experienced family lawyer.
Mr Bowler has not as yet had an opportunity to make any independent inquiries into the case or indeed to speak personally with the children concerned. Given W’s age it is likely to be important that he, at least, meets his independent representative in these proceedings. Significantly Mr Bowler has had insufficient time to commission a family report, which will examine the family and its dynamics from an independent and expert perspective.
The Independent Children’s Lawyer sees this as a difficult and finely balanced case. On the one hand the mother’s unilateral actions have obvious implications for X’s relationship with her father. On the other hand the mother apparently has nowhere to go in Adelaide and the family violence allegations involving W are potentially serious and as yet unresolved.
The Independent Children’s Lawyer is not in favour of the children being separated. Given their different ages and levels of maturity, their different paternity and potentially different views about Mr Cerwin, different considerations are likely to apply to the children.
On the current state of the material, it is easier to argue for W to remain in City B, particularly given that his biological father lives in the town. Given the close relationship between the children and their shared relationship with their mother in the Independent Children’s Lawyer’s view these factors militate in favour of the children continuing to live in City B with Ms Cerwin no matter the degree of censure Ms Cerwin deserves for her unilateral actions.
The nature of an interim hearing
This is an interim hearing. It takes place in a shortened form. The evidence from all of the parties concerned, I suspect, has been quickly prepared and is likely to be incomplete. Importantly at this stage there is insufficient time for the parties to be cross-examined.
It is through cross-examination that a person placed in my position, discharging a judicial function, is able to make findings regarding the credit or honesty of the parties concerned and consider the actions which have motivated them in the case to date. In the absence of such cross-examination at this interim stage I cannot resolve factual issues in dispute between them.
In this case there are many factual issues in dispute. Regrettably as in many hard fought cases which occur against a background of urgency and controversy each party has concentrated in their respective affidavit material on what they perceive to be the negative aspects of the other’s behaviour and personality.
Neither party has anything of a particularly positive note to say about the other. At this stage, in this context, it is difficult if not impossible for me to determine the rights and wrongs of the parties’ circumstances which seem to have led to a difficult and acrimonious separation between them.
Central issues and matters in dispute
Briefly the factual controversies can be summarised as follows. The father asserts:
·the mother has severe mental health issues including depression, anxiety, stress, insomnia and anger management problems which compromise her parental capacity. He says these problems are long standing.
·the mother abuses marijuana, spending up to a hundred dollars per week on the drug, which has caused financial difficulties for the family.
·the father says that the combination of these two factors has caused the mother to be paranoid and emotionally volatile.
·he has provided significant care for the children and performed necessary household tasks due to the mother’s level of dysfunction. To do this he has worked from home of late.
·he has a close relationship with W playing computer games with him regularly and helping with his homework. He would categorise W’s Asperger’s as mild.
·the children’s school attendance at Suburb Z in Adelaide was severely compromised in the second half of 2012 due to the mother’s difficulties. X missed 28.5 days and W 8.5 days.
·the final separation between the parties was precipitated when he attempted to prevent the mother driving the children to school whilst she was under the influence of marijuana. A struggle over the keys ensued and he cut his finger. Necessarily it is his position that he was not at fault during what seems to have been an unpleasant altercation.
·thereafter he says the mother clandestinely took the children to City B and has done nothing subsequently to support his relationship with the children.
For her part the mother’s asserts that:
·the father was largely absent from the household, due to his work commitments.
·she suffers from no diagnosed psychiatric or psychological condition.
·her doctor, Dr AA has provided a letter dated 30 November 2012 confirming she was referred for counselling but never prescribed medication by him.
·she has always been the children’s primary carer.
·the father, in contrast, has a poor relationship with both children.
·the father has an obsessive and interfering personality. Mr Cerwin unduly monitored the children’s behaviour and abused them if this behaviour displeased him.
·the father mistreated the children continuously during the parties’ relationship and was unnecessarily critical of them.
·She alleges that it was the father’s abusive behaviour, which precipitated their final separation.
·Ms Cerwin denies marijuana use and asserts that in contrast it is the husband who has substance abuse issues in that he drinks alcohol to excess.
·In all these circumstances Ms Cerwin asserts that the husband is incapable of parenting the children because to quote her affidavit:
“His influence on them is causing them a great deal of emotional turmoil and distress and this cannot be in their best interests.”
·X has missed school in the past but this was due to problems with her sleeping patterns in respect of which she has sought appropriate medical assistance and which in any event have improved markedly since X moved to City B.
The father would criticise the mother’s criticisms of him as being inchoate and lacking in detail. He would categorise the fact that W’s allegations of abuse have arisen only in City B as being highly suspicious and so likely to originate with the mother more than W.
He has evidence, in the form of a photograph of a container of Antenex, bearing the legend that it was prescribed for the mother by Dr AA, which he argues establishes that Dr AA is mistaken in his letter asserting an absence of any psychological condition on the part of Ms Cerwin. In the submission of counsel for the father, this inconsistency lands a fatal blow on Ms Cerwin’s credibility. In my view, this is drawing somewhat of a long bow.
For her part Ms Cerwin acknowledges what she describes as a generalised anxiety disorder but she would attribute this condition as being a reaction to the father’s controlling behaviour of her. As I say she denies any significant psychiatric condition. Thus it seems to be the case that the only evidence that Ms Cerwin is not functioning effectively as a parent comes from the father himself.
The exception in this regard concerns the children’s school attendance, where the record incontrovertibly shows a poor attendance record. The mother has provided a letter from a Dr BB, a paediatrician, who diagnosed a disorder of X’s sleep cycle, by way of explanation for the child’s poor attendance at school. The father’s view is that the mother’s poor parenting of X and neglect of a proper evening routine has resulted in this disruption, which is not medically based.
The father vociferously refutes any suggestion that he has ever behaved violently or inappropriately towards either X or W. As I say, I have not been provided with any recent documents from the South Australian Police. Families SA has not as yet made any investigations. Again, as with the father’s complaints against her, the mother’s criticisms of the father rest on her uncorroborated evidence alone.
The father states his time with X over the recent Christmas holiday went well. He says X told him that she missed her home in Adelaide and her school friends. Mr Cerwin believes X is confused about the move to City B. W apparently declined to see Mr Cerwin. Mr Cerwin complains that the mother was difficult to deal with over the holiday arrangements.
In short, at present the parties grossly mistrust one another and communicate poorly, if at all. They each make serious allegations against the other, which allegations, in the context of this interim hearing, are a considerable distance from being established in any meaningful evidentiary sense.
In his affidavit material, Mr V deposes his view that W has become more confident since arriving in City B. Mr V also deposes that W has disclosed to him that his step-father used to hit him with a belt and he was bullied at school in Adelaide. Mr V has deposed that W has told him that, “If he is ordered to live with Mr Cerwin he would kill himself.”
In these circumstances, if X and the mother are directed to return to Adelaide, Mr V would want orders made resulting in W living with him in City B. This, of course, would result in the separation of the two children from one another.
The mother’s view is that both children are happy and well settled in City B. She does not want to go to Adelaide and does not see how she could either practically or financially live in Adelaide.
Legal Principles Applicable
In making the interim decision, as at the final stage, the best interests of the child or children, affected by the decision, remain the most important consideration. The matters which the Court must take into account in deciding how a child’s interests are to be served are set out in the Family Law Act at Section 60CC.
The difference between an interim and a final hearing is one of procedure. Interim hearings do not determine the final arrangements for a child’s care, whereas final proceedings do. Interim proceedings are necessarily provisional in nature and last until further hearing or order.
Section 60CC creates two classes of considerations which apply to the Court’s determination of how a child’s best interests will be determined in proceedings before it.
There are two primary considerations, which are set out in section 60CC(2)(a) and (b), namely:
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.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to in a number of the Family Court as being twin pillars, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2)(a) into the Family Law Act, the Court is now directed, “in applying the primary considerations …to give greater weight to section 60CC(2)(b)”. This, of course, is the consideration dealing with abuse, neglect and family violence. These considerations are now given priority.
Other criteria relating to how a Court is directed to consider how the best interests of any children concerned may be served by any order which the Court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
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 an individual child’s circumstances may be addressed in order to make the appropriate order for that child. The aim of the legislation is to make an idiosyncratic order for the child, which is in his or her best interests.
There is 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. This presumption, created by section 61DA, relates to the allocation of parental responsibility but not to the strict allocation of time which a child spends with each of his or her parents.
The presumption is rebutted if the Court finds reasonable grounds to believe that family violence or abuse has occurred or it would not be in the best interests of the children concerned. At the interim stage, it can also be rebutted if it is just not appropriate for it to be applied.
However, if the presumption applies, the Court must consider a child spending either equal time or substantial and significant time with both parents, subject to a consideration of the child’s overall best interests and what is objectively reasonable or practicable to put in place.
Given the structure of Part VII of the Family Law Act, cases involving one parent wishing to move a major distance away from the other parent concerned, raise significant issues for the Court and the parties concerned. Such cases throw up competing principles which are difficult to reconcile.
On the one hand, one of the purposes of the Family Law Act 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 his or her parents, regardless of the fact that the parents concerned choose not to live together. It has been said that relocation cases need careful analysis. [1]
[1] See C & S [1998] FamCA 66
Accordingly, it is usually considered preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocations may have potentially serious ramifications for the children concerned, especially when those children are young, in terms of their ongoing parental relationships.
The consequences of a relocation do not turn on the distance involved in the move alone. In determining the consequences of such a move, what is also likely to be highly relevant is the age of the child concerned and the nature of the child’s relationship with the parent potentially left behind.
Older children will be more resilient to moving away from a parent. They will have a developed sense of time and be able to maintain parental relationships through regular school holiday contact interspersed with electronic communication. The workability of contact arrangements may be crucial in relocation cases.
X is just six. As such, it is unlikely that she has a well-developed sense of time and distance. It may be difficult for her to talk on the phone. From her perspective, the duration of a school term is a very long time indeed. In these circumstances, Mr Cerwin fears that X may lose her intimacy with him during widely dispersed periods of face-to-face contact.
It is in this context that the significance of the mother’s move becomes apparent. In C & S, a 1998 decision of the Full Court, where the leading judgment was delivered by Warnick J, the Full Court of the Family Court 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 regards to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.
This is the nub of the father’s case. He complains that the mother has presented him with a fait accompli in respect of what X’s relationship with him will be in future by moving such a significant distance away from him. Necessarily, this move will result in X’s relationship with him being curtailed and that level of curtailment will be to such a degree that it cannot be said to be in X’s best interests.
Mr Cerwin argues that X will not be able to maintain a sufficiently meaningful level of relationship with him if she lives in City B and he is only able to spend time with her in school holiday periods or perhaps on other occasions when either he is able to visit City B or X is able to visit Adelaide.
In this challenging context it is necessary for the Court to examine why the mother moved. Was the move dictated by unusual circumstances? Was it an emergency? What is the children’s level of relationship with both parents? Can those relationships be maintained in other ways? What are the implications for the children of either compelling a return or allowing the move, pending the collection of more evidence?
Relocation must have implications for the quality and intimacy of the parental relationship a child has with the absent parent. As I say, 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.[2] In that case, 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 that these are the types of case 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.”
[2] Morgan & Miles (2007) FamCA 1230
Essentially, the Court must weigh up the pros and cons of the relocation, on the one hand, and compelling the child to return on the other, against the various applicable factors under section 60CC. The best interests of the children concerned remain paramount but in undertaking this exercise I am not in a position to ignore the legitimate interests and aspirations of the parties themselves.
As I say, there is no rule of law that parents must remain indefinitely in close proximity to one another following marital breakdown. Pursuant to rights which have been read into the Australian Constitution by the High Court of Australia, citizens have an entitlement to freedom of movement. I am not in a position to ignore Ms Cerwin’s legitimate desire to live in a location where she believes she will be happy and secure.
In conducting this difficult exercise, I cannot ignore the provisional nature of an interim hearing and the integral deficits the Court must confront in making any findings of fact.
Given this difficulty and the controversy inevitably arising from relocation, one legitimate response may be to expedite a final hearing, provided there is sufficient time for the appropriate evidence to be gathered.
The earliest dates, available for me to hear the case, are the 7, 8 and 9 August of this year, which is in approximately six months time. If the court orders that a family report be prepared, it will take up to 14 weeks for such a report to be prepared. It is also likely to be the case, I think, that other issues will arise between the parties, particularly financial ones regarding the division of matrimonial property.
Accordingly, fixing the matter for trial in August seems to be a reasonably expeditious response to the current circumstances. The level of the delay arising also forms part of the logistical background to the case. It will involve potentially two school holidays.
Section 60CC factors
(a) The primary considerations
I turn to a consideration of the relevant section 60CC factors, starting with the primary considerations. X is likely to have the best opportunity to have the most optimal level of relationship with her father if the two live close together in the same locality.
Clearly this will not be the case if Mr Cerwin lives in Adelaide and X lives in City B. The separation of the two for extended periods must have implications for the quality of X’s relationship with her father, particularly given her age at present. In my view, six years of age is a vulnerable age for a child to be separated from a parent for weeks, rather than days.
Until October 2012, X and her father lived in the same household. Issues arise between the parties as to how meaningful was the relationship between the two in this context. I cannot resolve these controversies now. A family report is likely to shed light on the issue. However, notwithstanding this dispute, X must have seen her father daily.
However, given the end of the marital relationship between the parties, an arrangement, of this type, cannot be reinstated. If X remains living predominantly with her mother, whether in Adelaide or City B, her previous level of interaction with her father cannot be maintained and must change.
This is a necessary corollary for all children where this is a relationship breakdown occurring between their parents. Necessarily relationships between parents and children change. In addition, the parental roles of parents also change. Parents very often have to adapt their work regimes to the exigencies of parenting a child following marital breakdown.
Accordingly, the parameters in which X’s relationship with her father previously operated has the potential to change now that her parents have separated. Indeed, given that the father and X have been largely separated for a period approaching three months, some change is likely to have already occurred.
X is not likely to communicate effectively on the telephone, certainly not for extended periods of time. For her, the period of the school term is a long period of time indeed. At six, although she is not likely to forget she has a father or who he is over a 10-week period, such a long break is likely to have implications for the intimacy of the relationship and so its potential to maintain meaning.
The mother’s proposals for X to spend time with the father are not well delineated. A separation between a parent and child, depending of course on the prior quality of the relationship involved, would appear in general terms to be contrary to the best interests of any child so affected. Accordingly, if the present status quo continues, as Ms Cerwin proposes, X must spend time with her father in between school holidays if at all possible.
W’s relationship with Mr Cerwin has different aspects to it, when compared to the relationship between X and Mr Cerwin. For one thing, W is aware that Mr Cerwin is not his biological father. In addition, Mr Cerwin was not a part of W’s life in its initial years.
Finally, W at 13 is more able to maintain relationships over distance. To some extent, his significant familial relationships are set, in contrast to X, whose relationships are more rudimentary and evolving.
Thus the implications of X remaining in City B are likely to be far more significant than for W. It also seems likely that W’s relationship with Mr Cerwin is currently somewhat strained. Given W’s age, there are likely to be pitfalls in forcing him to interact with Mr Cerwin or for him to perceive that he is being forced to do something against his wishes.
In this context, the issue of family violence arises. The mother’s case is that the father has directly assaulted W on numerous occasions. If this allegation is true, it represents significant family violence. As such, the potential exists for the court to find that Mr Cerwin represents an impaired behavioural role model for the children, including X, and represents a threat to their welfare.
However, the allegations of family violence remain undeveloped. The allegations themselves are being investigated by police. They are denied by the father. At present there is no source of independent corroboration of the allegations, which arise in the context of bitterly contested interim proceedings.
But notwithstanding these factors, the court needs to be cautious whilst the matters are being investigated by police. At this stage, both parties assert that the court needs to take steps to protect the children from coming to harm as a result of the neglectful, abusive and violent parenting of the other.
The father’s claims of volatile behaviour on the mother’s part, due to her drug use and psychological issues, are potentially serious but in my view are at this stage unsupported by independent sources. If X has missed 28 days of school for no appropriate reason, I accept that this of itself constitutes neglect of the child.
X needs to establish good school habits early so she can make friends at school, become familiar and comfortable with the school environment and importantly, learn the foundation skills of writing, numbers and reading early on, so she can progress appropriately with her education. If X is consistently truant from school, this has the opportunity to rob her of a proper level of education, which will have potentially serious ramifications for the rest of her life.
However, to my mind, it seems somewhat illogical to sweep responsibility home to the mother alone, given the missing days occurred when X was living in the parties’ combined household and Mr Cerwin, in his material, asserts his importance in the children’s daily routine.
In addition, at this stage, I am not in a position to ascertain the credibility of the mother’s assertion that these missed days were due to problems with X’s sleep patterns, which were naturally occurring and not due to any parental neglect on her part.
(b) Additional considerations
W’s views, at 13 years of age, must be given significant weight. It is reported by both the mother and Mr V that he is vehemently opposed to returning to Adelaide. It is suggested by both the mother and Mr V that W will attempt self-harm if compelled to do so.
These views attributed to W arises in vitriolic proceedings where W is said to be estranged from Mr Cerwin because of the latter’s abusive conduct towards W. In these difficult circumstances, in my view, it would be imprudent for the court to disregard what is said to be W’s attitude in the matter.
However, W’s views have not at this stage been independently canvassed. This may be a view, a role for Mr Bowler, the independent children’s lawyer, in due course. However, it does not seem to me to be improbable that the presence of Mr V, in City B, is something of a pull for the child.
X’s views have not been canvassed in an appropriate way in the proceedings to date. Her views, if any, are likely to be highly controversial. At any event, at six her views should be approached with extreme caution.
X and W’s parentage is different. They are separated by an age gap of around seven years, a significant period. They have, however, lived in the same household since X was born. In those circumstances, it seems likely that their relationship with one another is significant to each of them and thus it would be contrary to their best interests for the court to consider separating them or inaugurating very different arrangements for their primary care.
The common developmental thread in both children’s lives has been their relationship with their mother. It would seem more probable than not that she is the most significant person in W’s life, if not also X’s up to this stage. This factor alone seems to militate in favour of the court taking a common approach in respect of both children.
W’s relationship with his father, Mr V, appears to have been disrupted in the past. Since W has lived in City B, the relationship is said to have entered a period of consolidation. The relationship between W and Mr V has the potential to be important for W, as he enters his adolescence.
The mother asserts both children are well settled in City B now, where they have lived for some three months. With respect, it is hardly likely that she would say anything otherwise. The evidence must be uncertain in this regard.
However, I accept it would be a significant change for the children to return to live in Adelaide. The parties are not well resourced financially. Where the children would live in this eventuality is problematic. It does not seem to me to be a case of simply reinserting the children back into the former family home. The father says he cannot afford to finance two households. The mother says that she cannot finance Suburb T house on her own.
Accordingly where the children will live if the court compels the mother’s return to Adelaide appears problematic. The mother may have to live with friends or rent temporary accommodation. Given her financial circumstances, she will have to live hand to mouth. What are the implications for the children’s best interests of this potential change is obviously unclear. If on balance the mother is found to be the children’s preferred carer, at this stage, it may be detrimental to her parenting capabilities if she is compelled to parent the children in temporary accommodation in a location unpalatable to her.
The father’s initial position was that both children should live with him in Adelaide. Given W’s apparent opposition to this course, Mr Cerwin has now modified his position. Rather he seeks the return of the children to Adelaide and is open to them remaining in the mother’s care in this eventuality.
The court cannot directly compel the mother to live anywhere. She is a free agent, apart from the natural limitations on an individual’s freedoms, arising from the obligations inevitably entailed in being a parent. The obligations implicit in being a parent may well last a lifetime.
Given the undesirability of separating the children; the difficulty of moving W into the father’s care, given W’s views; the outstanding police investigation in respect of the claims of family violence against him; and the likely significance of the mother’s role in the children’s lives up to this stage; on balance, Ms Cerwin seems the party better placed to parent the children currently together at this interim stage.
In reaching this conclusion, it seems inappropriate, in all the circumstances prevailing, for the presumption of equal shared parental responsibility to be applied at this interim stage. At this stage the parties are unlikely to be able to exercise such authority effectively.
In any event, the parties’ current geographic circumstances render either equal time or a substantial and significant time arrangement unworkable unless one parent moves. Mr Cerwin will not move to City B and Ms Cerwin will return to Adelaide only through the court’s compulsion.
The usual mechanism for such compulsion, at the interim stage, is the court offers the parent who has moved an unpalatable choice. Either that parent returns with the child or children concerned to the location left or the child or children live with the other parent in that location.
In the past I have described such orders as being an exercise by the court of legerdemain or sleight of hand. Certainly there is an artificiality about such orders, if the pretext of such an order is that the court, having determined that the best interests of the child concerned will be best served if they continue to live predominantly with the relocating parent but nonetheless the court orders the child live with the other parent concerned only to secure the return of the preferred parent to the location departed from.
For the reasons which I have provided up to this stage, I have determined that the children’s best interests will be served if they live together with their mother. This outcome can only be achieved, in Adelaide, if I compel the mother’s return by effectively providing her with the default option of the children living predominantly with their father, unless she moves back in tandem with them. I do not think that such a default is likely to be in the best interests of the children concerned, particularly given that the hearing of the matter can proceed in a relatively short period of time around six months.
In these circumstances, the adequacy and workability of the parties’ proposals for contact become crucial. This is a major deficit in the mother’s case, given X’s tender years and the lack of any detailed proposals on the mother’s part for X to spend time with the father if she remains in City B.
There may be much to be critical in the mother’s attitude to the responsibilities of being a parent and her level of insight into the responsibilities of being a parent, particularly in respect of her capacity to support the children’s relationship with their father. Ms Cerwin has unilaterally moved W and X a great distance away from a person who is significant in both their lives. This consideration is more germane in X’s case, given her paternal relationship with Mr Cerwin.
The central evidentiary issues concerning these criteria, namely, the mother’s capacity to support the children’s relationship with their father and what is her insight into the responsibilities of being a parent, turn on the extent of the emergency facing the mother in October 2012.
I am not in a position to assess the degree of crisis which faced Ms Cerwin at this stage but note the following:
·There seems to have been no police involvement.
·The mother has never sought a domestic violence order against the father.
·There are no independent sources of corroboration of her claims against the father at the present stage.
·The mother’s allegations concerning the abuse of W arose when she had arrived at City B.
In these circumstances, it is only to be expected that Mr Cerwin would regard the mother’s apparent disclosures as being self-serving as they arose when he had commenced these proceedings to compel the mother’s return to Adelaide, after she had moved unilaterally to City B.
Importantly, in this context, in October, Ms Cerwin apparently gave no consideration to any less draconian option than moving with W and X to City B, which obviously must have significant implications for the father’s ability to have input into the care of the children. In particular, she did not consider remaining in Adelaide, perhaps with a friend or in some form of temporary accommodation, until the metaphorical dust of the parties’ separation had settled.
However, having noted these various factors, I can understand why Ms Cerwin chose to return to City B, where she grew up and where she has the support of her parents and accommodation available to her. It is a common scenario that, following relationship breakdown, one parent goes to where he or she perceives that there is safety and emotional support.
Conclusions
At the end of the day, this is a heart breakingly difficult case, which has no easy or obvious solution. I have great sympathy for Mr Cerwin, who wasted no time in bringing these proceedings. I am also concerned that there are perils in a court such as this one given retrospective approval to the move of children away from the other parent concerned.
One of the abiding themes of the Family Law Act is that parents share responsibility for their child or children and should make, wherever possible, consensual decisions regarding major long term issues pertaining to them. The term major long term issues is defined in the Family Law Act. It includes changes to a child’s living arrangements that make it significantly more difficult for the child to spend time with a parent. In this case it is clearly the case that Ms Cerwin made a major long term decision, concerning X and W, totally independently of Mr Cerwin.
However having closely considered, I hope, the various section 60CC factors, I have come to the conclusion that the children’s best interests will be served if they live in the same household and are not separated. At this stage it would appear to be potentially detrimental to W and contrary to his views to place him in the care of the father in Adelaide.
Separating the children and placing W with Mr V appears to me to be a problematic and untested option, given that W is currently in the throes of reforming his relationship with his father.
In addition, it appears to me to be inherently contrary to the children’s best interests to leave W in City B and compel, in effect, the mother and X to return to Adelaide under an arrangement where X would continue to live predominantly with her mother.
In my view this militates in favour of the children remaining in the mother’s care, pending trial, provided adequate arrangements can be made for X to engage with her father in the period pending trial. In my view there are too many problematic issues arising from compelling the mother and X to return to Adelaide and in any event such an outcome could be achieved only by disregarding the mother’s entitlement to live where she chooses.
The chief detriment of the mother’s position is that it may cause the playing field to be skewed, at final hearing, in her favour and indeed to render such a hearing otiose. I am well aware of this difficulty. However the final hearing will be about six months away and I do not consider that this of itself will necessarily render a further hearing obsolete.
In the period pending final hearing, I am satisfied that X can sustain a meaningful level of relationship, which I concede will not be the optimal level of relationship,[3] if she sees him during school holidays and on two occasions during each term.
[3] See Godfrey v Saunders 208 FLR 287 at 298 where Kay J pointed out that “what the legislation aspires to is a meaningful relationship, not an optimal relationship”,
Given that the mother has moved she must contribute towards the costs of this travel involved notwithstanding that she is in receipt of social security. I am also minded to order that school holiday times occur in Adelaide and one weekend period occur in City B during the school term with the other in Adelaide. If the parties book in advance the expense involved although I concede will be considerable I have come to the view that it will be manageable.
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 thirty one (131) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 30 January 2013