Chapa and Chapa - [2012] FMCAfam 1420

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHAPA & CHAPA

[2012] FMCAfam 1420

FAMILY LAW – Interim parenting – children aged 6 and 3 – mother unilaterally moving with children interstate at time of final separation – mutual allegations of child abuse – allegations by mother of family violence against her by father – allegations by father of mental instability of mother.

Family Law Act 1975 ss.4(1), 4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Applicant:

MR CHAPA

Respondent:

MS CHAPA

File Number:

PAC 4726 of 2012

Judgment of:

Halligan FM

Hearing dates:

6, 17 & 18 December 2012

Date of Last Submission:

18 December 2012

Delivered at:

Parramatta

Delivered on:

18 December 2012

REPRESENTATION

Counsel for the Applicant:

Ms Obradovic

Solicitors for the Applicant:

Sheather Solicitors

Counsel for the Respondent:

Ms Goff

Solicitors for the Respondent:

R J Cole and Partners

Solicitors for the Independent Children’s Lawyer:

Ms O’Donnell
Legal Aid Commission

ORDERS

Pending further order, the children, [X] born [in] 2006 and [Y] born [in] 2009, shall live with the mother and the mother may remain living in the Adelaide area.
Pending further order, orders are made in accordance with paragraphs 10(a) to (d) and 11 to 14 of the Independent Children’s Lawyer’s minute of proposed orders, marked exhibit C.
Pending further order, orders are made in accordance with paragraphs

5 to 7 of exhibit C.
Pending further order, the father shall spend time with the children each Christmas Eve and each Boxing Day, from 10 am to 6 pm. Changeover is to occur at the maternal grandmother’s residence.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PARRAMATTA

PAC 4726 of 2012

MR CHAPA

Applicant

And

MS CHAPA

Respondent

REASONS FOR JUDGMENT

This is the hearing of competing interim parenting applications concerning two young boys, [X] born [in] 2006 and [Y] born [in] 2009. The parties are the children’s parents.
Most of the pertinent facts in this matter are in dispute. As is usual in an interim matter there has been no cross-examination of any witness. As is less usual in a matter of this kind, there has been a large number of affidavits not only by each of the parties themselves but also by supporting witnesses that has resulted in a significant protraction of this interim hearing without adding any real benefit or casting any greater light than might have come from one comprehensive and coherent affidavit from each party.
Be that as it may, the father is 26, the mother is 37. As I have just indicated the two children were aged 6 and 3 years 10 months respectively. The commencement of the parties cohabitation is but one of the many facts in dispute. The father suggests that it was in August 2005, the mother 26 December 2006. The date of marriage, thankfully, is agreed, [omitted] 2008, as is the date of final separation,

13 October 2012.
Although I am not satisfied it is relevant to the matter I must determine today, the mother has another child of another relationship who is now an adult and with whom she has no contact.
At the time of separation the mother unilaterally relocated with the children to South Australia, her State of birth. Adelaide is where her extended family lives.
The father seeks an order that the children and the mother return to western Sydney. He seeks that the children live with him and spend time with the mother. The time that he proposes the children spend with the mother is alternate weekdays, which was clarified to in fact be each Tuesday and Thursday, from 4 pm to 8 pm, and each Saturday from 11 am to 4 pm. He proposed that there be time otherwise as may be agreed between the parties, but present indications are that these parents could not agree on very much.
For her part the mother seeks to remain living with the children in the Adelaide area. She proposes that she have sole parental responsibility for the children and that the children spend time with the father each alternate weekend from 12 noon to 4 pm Saturday and Sunday, from

12 noon to 4 pm on Christmas Day and from 12 noon to 4 pm on [Y]’s birthday in 2013. She proposes that the father’s time be supervised by the maternal grandmother and/or the maternal step-grandfather and occur at their residence. However, she puts no evidence before the Court from either of those individuals to indicate their agreement to undertake the role of supervisor, their agreement for their premises to be used as the place for the father to spend time with the children, their understanding as to why they might be required to supervise the father with the children, their understanding of their obligations as a supervisor, or how they would propose to discharge those obligations.
I am thus not satisfied that the mother’s proposal is one that the Court can further consider because there is simply no evidence upon which the Court could have any satisfaction that an order in those terms would result in the children spending any time at all with the father.
The Independent Children’s Lawyer has put forward a minute of proposed orders. It is her proposal that the children should return to the Sydney area. The mother has indicated through her legal representative that if that were the result, she would relocate back to Sydney with the children.
The Independent Children’s Lawyer proposes that if the mother does so, then the children spend time with the father each Wednesday afternoon after school or preschool to Friday morning before school or preschool and each Sunday morning to Tuesday morning before school or preschool. The Independent Children’s Lawyer proposes that the mother live in the Blacktown local government area and if she does the children live with her. She proposes that the children be re-enrolled in the respective school and day care facility in which they were enrolled before the mother removed them to Adelaide.
The Independent Children’s Lawyer proposes a number of other, if I may term them, regulatory orders, that is, orders attempting to regulate and govern the parents’ attitudes and behaviour. For example, she seeks orders requiring the parents to keep each other advised of their telephone numbers and addresses and of any change to those particulars, restraining each party from discussing the proceedings with and in the presence of the children, and requiring each party within seven days of the orders to take all steps necessary to enrol in an appropriate post-separation program. She also seeks an order that the mother ensure the children attend an interview with the Independent Children’s Lawyer. I will return to that as the mother is seeking a change of venue which I need to determine once I determine where the children will be residing pending a final hearing. The Independent Children’s Lawyer also seeks an order, expressed as being on a without admissions basis, that neither party uses physical discipline on the children nor permit any other person to do so.
The orders I am asked to make are parenting orders, and therefore the children’s best interests are the paramount consideration Family Law Act 1975, section 60CA). In determining where the children’s best interests lie, the Court must have regard to the relevant considerations identified in section 60CC. The court must have regard to section 61DA, and if the Court makes an order for equal shared parental responsibility, the court comply with section 65DAA. In considering the children’s best interests, the Court must have regard to the objects and principles of Part VII of the Family Law Act as set out in section 60B.
I note that because of the date of the institution of these proceedings, family violence amendments, as they are generally referred to, to the Family Law Act that commenced in June of this year apply to these proceedings. Relevantly for these proceedings these amendments affect the definition of abuse in relation to a child, family violence and the relevant considerations under section 60CC.
Abuse in relation to a child is now defined to mean (section 4(1), Family Law Act):
(a)    an assault, including a sexual assault, of the child, or
(b)    a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person, or
(c)     causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence, or
(d)    serious neglect of the child.
Each of the parties have raised allegations against the other which if true would seem prima facie to meet the part of the definition of abuse referred to in paragraph (a) just quoted. Whilst the evidence at this stage would not support a contention, if it were part of the mother's case, that there has been abuse in terms of paragraph (c) of that definition, that is, causing the child to suffer serious psychological harm by exposing the child to family violence. There is no evidence that behaviour of the children, particularly [Y], reported by the mother, has in fact been caused by any family violence.
On the other hand, in light of the mother's allegations of family violence, if the Court were satisfied that, assuming her denied allegations to be true, there was a risk of it recurring, then the Court would have to proceed upon the basis that there may be a risk of abuse as referred to in paragraph (c) of the definition.
So far as family violence is concerned, that definition too has been affected by the amendments to which I have referred, and the definition relevantly is now contained in subsection 4AB of the Family Law Act. That definition now provides:
(1) For the purposes of this Act, Family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
The mother alleges family violence against the father. She alleges, but provides no evidence to prove, a pattern of violent and abusive behaviour, including an allegation with no evidence to substantiate it of physical violence, damage to property, injury to animals and verbal abuse and denigration, but with one exception these are broad and generalised allegations. An allegation is not evidence of family violence.
Subsection 4AB(3) indicates what it means to expose a child to family violence for the purpose of the definition of child abuse that I have quoted:
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
The mother gives evidence of one incident occurring at the time immediately prior to the final separation of the parties in October this year when she alleges that the father verbally abused her and placed his hands around her throat in front of one of the child. She therefore is alleging exposure of a child to family violence, but the evidence is as I say is insufficient to prove child abuse on that occasion. If the Court ought to give some credence to the mother's version of this incident, albeit that the father denies the allegation against him, then there is risk, if there were to be a recurrence of family violence, of the child being abused.
So far as the relevant matters under section 60CC are concerned, the Court is required first to have regard to each of the two primary considerations - the benefit to the child of having a meaningful relationship with each of the child’s parents, and the need to protect children from the risk of harm by being exposed or subject to abuse, neglect or family violence. However, in applying those two considerations, the Court is to give greater weight to the second consideration, that is, child protection issues (subsection 60CC(2A)).
I am satisfied that there is a potential for the children to benefit from a meaningful relationship with both parents. The children have had a relationship with each parent, although the nature of it is in dispute on both sides, up to this point, and although each of the parents seems to suggest that that has not always been a beneficial experience for these children, nonetheless they are both proposing that the children should have opportunities for an ongoing relationship with each parent, and therefore the inference must be that they can see there is some benefit to the children from doing so.
The mother proposes the supervision that I have referred to on the basis that she suggests there is a need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. As I say she alleges a pattern of family violence without giving evidence to support the allegation. She gives evidence of a specific incident that I have referred to. The only other matter to which she has averted is an allegation that on one occasion the father damaged a drawer in a wardrobe. The precise circumstances under which she alleges that occurred are not explained, and it is not possible to determine on the basis of the evidence that the mother gives whether that, if true, could amount to family violence. The father certainly denies that it was and suggests that it was not he who interfered with the draw but rather the mother. I can take that matter no further and I note for completeness that the father denies the incident that the mother alleges on the day of separation.
However, as I have said these are interim proceedings and the Court is not, without cross-examination, entitled to simply find that these parties cannot be believed at all. Having said that, I note that there are difficulties with the evidence of both parties containing internal inconsistencies and a number of them are quite troubling because they go to significant matters. The inconsistencies arise both directly in relation to inconsistent statements and also inconsistencies apparent between the allegations and the consequent actions or inactions of the parties following those alleged incidents.
For example, the mother alleges that the father would, on an unspecified number of occasions but apparently with some degree of regularity, seek to discipline [X] by taking him by the head and, to use the mother’s word, slamming the child’s head into the floor. That is a generalised allegation, with no specificity given. There is one occasion the mother particularises in her evidence, giving a specific time, place and circumstance, including the suggestion that her own mother, the child’s maternal grandmother, was present on the occasion, when she says that the father grabbed [X] by the neck and banged his head into the wall when the child stood up to him, as the mother describes it, and told him to stop shouting at the mother. The father denies that incident.
What concerns me in relation to the mother’s evidence is her total inaction to secure the safety of the children. The only evidence that she gives was on that occasion arguing very loudly, in fact shouting at the father, to seek to stop him doing what she alleges he was doing to the child. That is, she engaged in a loud argument with the father at the time, running the risk of further traumatising the child, assuming that what the mother alleges in fact occurred.
I cannot at this stage say it did not, but I am troubled by the fact that despite the mother’s assertion that this was not an isolated incident, she at no stage removed the children from the place of danger, she at no stage reported these matters to anyone, and although the parties separated on a number of occasions, she subsequently, including as recently as July this year, returned with the children to the father.
So far as the father’s case is concerned, at one point he said that the mother never disciplined the children. Then, faced with the allegation by the mother about his heavy-handed physical discipline of the children, responded that in fact the mother generally used time out with the children but when she got angry with them would shout at them and on at least one occasion threw them across the room. That would inherently be a highly dangerous manoeuvre for a young child, yet there is no evidence that the father did anything to secure the safety of the children from the risk to life and limb that would come from being thrown bodily across a room.
To say that I am troubled by the glaring inconsistency between the seriousness of the allegations each parent makes against the other and their total failure to act to secure the safety of these children would be a gross understatement. It is possible that the parties are exaggerating. It is possible they are simply lying. It is possible that they did not appreciate the need to afford these children a place of safety and therefore failed them at the most fundamental level in meeting their responsibilities as a parent.
Which it might be, at this stage, I cannot determine, but it leaves both parties, in my view, in a very poor light and the allegations are probably as telling against the party making the allegation as they are against the parent subject to the allegation.
In those circumstances, where each of these parties makes such serious allegations, where neither of them has taken steps in the past to protect these children from what must be an obvious serious risk of physical harm, it makes somewhat meaningless the second of the primary considerations which I am meant to give priority to, the need to protect children from physical or psychological harm. Where neither parent apparently, if I am to accept their evidence is true, has bothered to do so in the past and I am left with the choice of leaving these children to a greater or lesser extent with each of the parents, it would seem I have no option available to me at the present time to protect these children from the risks that both parents allege that the children are subjected to with the other parent.
I do note, however, in relation to the father’s allegations, that he does not suggest, despite the seriousness of his allegations, that the mother needs any supervision of her time with the children and, in fact, the main focus of his case, and the main matter from which he suggested the children needed protection, was not the mother’s physical abuse of the children by throwing them bodily across the room as a means of discipline, but rather, from his allegation that he believes the mother suffers an undiagnosed mental condition and she is prone to irrational and erratic behaviour.
That must amount, I assume, to an allegation of a risk of neglect and I assume that this too comes under the second of the primary considerations, although it must be said that in submissions on behalf of each of the parents the specific provisions were not directly engaged.
The father alleges, as I say, and he has supporting witnesses attempting to corroborate him in circumstances where, at an interim hearing, I cannot make concluded findings on contested matters of fact, that the mother has been prone to erratic behaviour.
It is suggested that she loses her temper with the children and shouts and swears at them. The mother denies this. Otherwise the examples that the father gives of the mother’s erratic behaviour relate to an allegation that she deliberately wiped the data off a computer used in connection with his business with no evidence as to the basis upon which he draws that conclusion or holds that opinion. In the absence of any evidence of fact sufficient to lead the Court to the same view, I reject that allegation.

Otherwise he suggests that the mother had herself admitted to hospital early this year saying she was suffering a heart attack. The mother says that she was suffering chest pains. She went to hospital. It was suggested to be stress. She went home. The pain increased. An ambulance was called and she was conveyed to hospital again but again ultimately no heart difficulties were diagnosed. I do not see anything warranting criticism of the mother there.
The father and his witnesses allege that the mother on three occasions has taken an overdose of prescription medication, particularly Valium. The mother denies taking the overdoses on two of these occasions. She admits taking more than the prescribed quantity, a nice way of avoiding admitting an overdose, on one occasion when she was in South Australia in 2009. She denies that that was a suicide attempt.
All of the medical records in relation to the mother’s admission to hospital, or more correctly, attendance at hospital – the mother says she was not admitted – where she was conveyed by ambulance when she took this overdose, and her subsequent involvement with mental health professionals in South Australia consequent upon the visit to hospital on that occasion, all purport to record the mother as saying that she took an overdose and wished to end her life. There is reference to the mother, in fact, having written on the inside of her forearm “not for resuscitation” or similar words.
Although, as I say, at this stage the Court would not normally make findings on contested issues of fact, I am troubled by what the mother does not tell the Court about this particular incident. She denies that this was an attempt to take her life. She suggests, in fact, that she suffered no ill-effects. She asserts that she was seeking to escape with the children from the home where the father was at that time in South Australia. She suggests that her aim was to enable her mother to come and collect the children and for her also to leave the home. She gives no evidence to suggest that she was in any way being inhibited from leaving the home with the children if that is what she wanted to do. There was no evidence, even though she makes an allegation of being abused by the father at the time, of any such abuse. Although she alleged that she was being abused by text messages from the father’s father and brother and being abused by telephone calls from the father’s father, she gives no evidence of any such abusive text messages or phone calls.
Simply alleging a fact is not evidence of that fact. Affidavits are not pleadings. They are meant to contain evidence to prove pertinent facts. Merely making a bald allegation of a fact is not evidence of anything. While she says she took more than the prescribed amount of medication, the mother otherwise, rather unhelpfully, does not offer an indication as to how much she did take while suggesting she did not take as much as was recorded in a note that she made at the time.
That note, she suggested, she scribbled out. It does not give the appearance of being scribbled. It gives the appearance of being fairly carefully written in block letters. The mother suggests that the father attempted to make her write a suicide note. She gives no evidence of anything the father said or did on this occasion that could have had that effect, and interestingly she does not directly assert that the father caused her to write the note that she did. She simply says she wrote the note to appease the father. In what way, she does not explain.
This is a very serious allegation for the mother to make. She is inferentially suggesting that the father was present and knew that she had taken an overdose of medication, that he was attempting to have her against her will write a suicide note, and that he was otherwise taking no steps at all to ensure her safety, but it is a bald allegation with no evidence to back it up.
As I say, it may be rather unusual in interim proceedings such as this, but on this particular point I simply do not accept the mother’s evidence that this was not a suicide attempt. I am satisfied that that is exactly what it was, and at this stage and at the risk of doing the mother a disservice where she has not yet had the opportunity of going into the witness box and providing an explanation of these matters, I propose to proceed upon the basis that that is precisely what this was, a suicide attempt. If ultimately, in a final hearing, further facts come out that show that it was something different, good and well. A different finding can then be made.
As I say, it would seem that based upon these matters the father suggests that these children are at risk with the mother and she is not able to appropriately care for them. The evidence does strongly suggest that this mother has had a history of anxiety. The clinical notes suggest that she has had a number of traumatic experiences in her life from her childhood. The clinical notes suggest a possible diagnosis of PTSD at one stage. There is mention of depression at another. There is certainly a consistent reference to anxiety. There are references to claustrophobia and acrophobia. There are references at different times, although not consistently, to the mother feeling so anxious that she had difficulty going out even to do the shopping. These clearly are matters potentially which affect her ability to care for these children.
But these are matters that occurred, or that are noted, in 2009, not in 2012. The question is whether or not there is evidence that this is the mother’s current presentation or whether there is an unacceptable risk of it recurring such as to warrant the children living with the father, as he suggests, where, as I will come to in a moment, I am satisfied that these children have habitually been in the mother’s primary care, that the father’s involvement in the care of the children has been very much peripheral and I am satisfied, especially bearing in mind the young age of these children, that they would have a much stronger attachment with their mother and would feel far more acutely a separation from their mother than their father.
Turning to the additional considerations, there are no views cogently reflected from these children in the evidence. The matters referred to by each of the parties in my view in the circumstances of this case would warrant having no weight attached to them.
As to the nature of the relationship of the children with each of the parents, the history of the parties’ relationship since the elder child’s birth is instructive, and although the detail is in dispute, even on the father’s evidence, a very clear picture emerges.
At the time [X] was born, on [date omitted] 2006, the parties were separated. The mother was living in Adelaide and the father was living in Sydney. However, the father did attend the birth. The evidence is that the father then visited the mother at Christmas time in Adelaide, spent Christmas with the mother and [X] and the mother’s family and then, the parties having agreed to reconcile their relationship, they together returned to New South Wales at the end of December 2006.
In July 2007, the mother and [X] returned to Adelaide for a period of about four weeks, when the parties were separated, according to the father. The mother in fact suggests that it was a period longer than that but simply looking at it for the four weeks that the father asserts, it is about one month against the mother’s assertion of a period of, I gather, three or four months. She then returned to resume cohabitation, bringing [X] with her of course, in about July 2007.
[Y] was born [in] 2009. In July of that year, the family agreed to relocate to Adelaide. The mother and the children went down first. The father was to arrange the removal of their possessions. He was also to arrange the sale of his business. However, having agreed to that relocation, when the father came back to Sydney he received a business offer too good to refuse so decided not to sell the business, stayed in Sydney, and thereafter visited the mother in Adelaide with the children every second weekend.
It was in September, only shortly after this, that the mother took the overdose of Valium in South Australia.
As I have intimated, the mother suggested that the father was present at the time and was abusing her. The father, in his evidence, denies that he was present at the time and in fact asserts that he was with the maternal grandmother when she received a call from the mother and he accompanied the grandmother to the mother’s home.
After the mother took the overdose, the father said that he moved full time to live in Adelaide with the mother and the children. After the mother’s visit to the hospital, the parties and children then stayed at the maternal grandmother’s home for a period until the father secured rented premises in November 2009, when the father then resumed coming back to Sydney.
This was two months after the father believed that the mother had taken an overdose in an attempt to take her own life, with the children present with her and in her care. Two months later, after they had been living with the support of the maternal grandmother in her home, and having just moved into independent accommodation, he then was content enough to absent himself from Adelaide for three to four days each week to be in Sydney to attend to his business, a business which in September, when he said he moved full time to Adelaide, he had arranged for a friend to manage.
In August 2010, the father said that the parties returned to Sydney but of course, from November 2009 to August 2010, the father had only been present with the mother and the children half the time. The mother suggested that the period in Adelaide was a continuous period of separation.
In about July this year there was a period of separation when the mother took the children to Adelaide. The father suggested it was about a week, the mother suggested it was about two and a half weeks, and then she returned again to resume cohabitation until final separation on about 13 October, when the mother unilaterally relocated with the children to Adelaide.
Thus, on the father’s evidence, in the period since [X] was born, there was a period of cohabitation in Sydney from the end of 2006 to July 2007; a break of four weeks; a resumption of cohabitation in Sydney from August 2007 to July 2009; then, according to the father, a move to Adelaide but with the father remaining in Sydney until September 2009 and for the period from July to September 2009, the father visiting every second weekend; from September 2009 to August 2010 the father asserts cohabitation in Adelaide but he was absent half the time from November 2009; the parties returned together to Sydney and lived together in Sydney from August 2010 to July 2012; then a one week separation in July 2012 and a resumption of cohabitation until 13 October 2012, when the parties finally separated and the mother and the children have been in Adelaide from October to December of this year.
It has thus been a little over six years since [X]’s birth and during that period, on my reckoning, the total period of cohabitation of the parties according to the father has been about four years and nine months, but for 10 months of that, the father was there only half the time.
When the parties cohabited - and I make no criticism of the father for this - he was absent on his own admission working long hours in his business to provide materially for his family. The mother was not working outside the home. The total periods of separation of these parties to date has been 16 months since [X]’s birth according to the father. These children, as I say, are now six years and three years 10 months.
Based upon the chronology, even on the father’s evidence, I am satisfied that of the two parents, the mother has preponderantly met these children’s needs on a day to day basis and I infer that it is far more likely than not that these children are more closely bonded and attached to the mother than they are to their father, and as I have already said, I am satisfied that the effect of separation from the mother would be far greater than separation from the father.
So far as the children’s relationship with others are concerned, there is a suggestion in the father’s case that both his sister and a female friend, who he and she describe as the [Y]’s godmother, although the mother denies she is, have been involved heavily in the care of the children for various periods.
The person describing herself as [Y]’s godmother gave evidence which simply cannot be true and I am not prepared to place any weight upon her evidence at the present time. She said that she was caring for these children on a regular basis in Sydney at a time when, even on the father’s evidence, the mother and the children were in fact in Adelaide.
I am unable to make any meaningful assessment of the nature of the children’s relationships with these persons or with others. I am prepared to proceed upon the basis that these people are more likely than not to be familiar to the children, as there seems to be no issue that these people had an involvement from time to time with the children, albeit the extent of that involvement was in hot dispute.
I am more than happy to proceed upon the basis that these children have an appropriate relationship with their maternal grandmother. It is common ground that for at least a few months after the mother’s overdose in September 2009, the family lived with the maternal grandmother, but beyond that, I cannot qualitatively assess this relationship.
Although the reasons for this are in dispute, there seems to be little issue that the children have spent little time with other members of the father’s extended family apart from his sister.
So far as the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues and the children, spending time with the children and communicating with the children the concern, as I have said, the mother unilaterally relocated these children to South Australia in October. Her evidence is that she was doing so, in effect, to escape family violence and child abuse. The difficulty is that she is long on allegation and short on evidence as to these matters.
I am not in a position, even though the father denies the allegation, to reject and disregard the mother’s evidence of what she alleges occurred on the day of separation and I therefore must proceed upon the basis, at this stage, that what she said might be true. It might also be false but at that stage, I am not prepared to make a finding that there is no foundation upon which I could be satisfied that the reason the mother advances is untrue. Put another way, it is possible, on the evidence, that the mother was the victim of physical family violence on the date of separation, and in those circumstances she can argue, if that were true, that to relocate to Adelaide with these children was not unreasonable, even though it made any involvement between the children and their father problematic in the extreme, not least because the mother did not disclose her whereabouts.
So far as the distance the mother travelled to escape a violent relationship, as she would put it, I am satisfied that if the mother’s allegation is true, where she went was not inappropriate. The father’s own evidence is that the mother had difficulty establishing close friendships in Sydney. The mother’s family is all in Adelaide. Certainly, she has a dysfunctional and poor relationship with her sister and, it would seem, has great resistance to her children mixing with her sister’s children and those children are not infrequently at the maternal grandmother’s home, creating arguably some difficulty in relation to the mother accessing support within the grandmother’s home that she did immediately after the overdose in September 2009.
But nonetheless I am satisfied, on the evidence, that the grandmother has been a source of support in the past – that is the father’s own evidence – and I am satisfied that there is no reason to doubt that she would continue to be a support for her daughter. The mother also has a brother in Adelaide who is a support for her. I am, therefore, not satisfied there is any matter adverse, to either party for that matter, in relation to paragraph 60CC(3)(c).
In relation to paragraph 60CC(3)(ca), the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child, this is far too early in the period of separation to make any assessments in relation to that.
The next matter is the likely effect of any change in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other relevant person. I have already found that I am satisfied that there would be a far more significant adverse impact upon these children from separation from the mother than from the father, which is what the father seeks.
The likely effect of change in the children’s circumstances also has to take into account the children either living in Adelaide or living in western Sydney. Clearly, if the children were to live in western Sydney, it would provide an opportunity for more and more frequent time with the father than might be possible if they remain in Adelaide. The father’s behaviour in the past satisfies me that he can meet the cost and the inconvenience of fairly regular attendances in Adelaide to see the children but it still remains the fact, that the frequency that would be possible in Adelaide is less than if the mother was in Sydney, and that is particularly significant at the younger child’s age.
On the other hand, I am concerned about the potential adverse effect upon the mother and, through her upon the children, of ordering a relocation back to Sydney. The father’s case, as I say, is that the mother has difficulties. He has suggested an undisclosed mental condition and the evidence clearly demonstrates that she does have significant issues with anxiety. If the Court were to order the mother to return to Sydney, the Court would be ordering the mother to come back to a situation that she says she has fled in fear, leaving behind her family supports, and leaving behind the other support mechanisms that she has begun to engage with through the domestic violence service that she engaged with upon arriving in Adelaide in October.
As I say, the father’s own evidence is that the mother has difficulty making friends in Sydney. There is no other maternal family in Sydney. The father’s sister and the person described in the father’s case as [Y]’s godmother have previously, even on the mother’s admission, provided some limited support to the mother in the care of the children, but they are now clearly aligned with the father. They are witnesses in his case against the mother, and the mother has disputed extensive aspects of their evidence. To suggest that these people could remain supports for the mother is simply impractical.
In those circumstances, what I am asked to do in the father’s case and by the Independent Children’s Lawyer is to order the mother back into a situation where she would be separated from whatever support networks she has, where she clearly suffers and has been treated over some significant period of time, including with medication on prescription, for at least anxiety, and where the father says these matters impact adversely upon her ability to care for the children. To my mind, it becomes something of a self-fulfilling prophecy to accede to the application that the mother be required to return to Sydney. On the father’s own case, that would seem to be highly likely, if not designed, to compromise significantly the mother’s ability to parent these children, whether they are living with the father and spending time with her or primarily living with her and spending time with the father. That cannot be in these children’s best interests where, as I have said, I am satisfied the children would look to the mother as their primary carer and with whom they would have their primary bond. In my view, this is a very significant consideration in this particular case.

While it is the case that the children could spend more limited time with the father if they remain in Adelaide, nonetheless it is still practical for the children to be spending time with their father on a fortnightly basis. He has in the past, as I have indicated, when he was in Sydney and the family was in Adelaide, gone down on an alternate weekend basis and that apparently was seen by him at that time as an appropriate means of maintaining his involvement with his sons.
I have, to that extent, alluded to the next consideration, the practical difficulty and expense of the children spending time and communicating with a parent. There is nothing further that I wish to say in relation to that.
So far as the parenting capacity of each of these parents is concerned, I have expressed concerns already about the serious allegations that each raises against the other and their failure to take protective action for these children, assuming the allegations were true. I have also made comment in relation to the potential adverse impact upon the mother’s parenting capacity of ordering a return to Sydney. The father’s capacity to care for these children for any protracted period is untested.
In relation to the next relevant consideration, the maturity, sex, lifestyle and background of the children and relevant others, I have adverted to the children’s ages and, in particular, the significance of the younger child’s age and there is nothing further to be said on that.
There are no issues of Aboriginality.
The attitude to the children and responsibilities of parenthood has been covered sufficiently in what I have already said.
I should note, for completeness, that there are other allegations that these parties have raised against each other. It is not necessary for me to go through every one and tick them all off, shopping list fashion. I have taken them all very carefully into account including the mother’s, frankly quite fanciful, evidence seeking to suggest that the father has been involved in dealing Ecstasy. The mother’s evidence in relation to this is risible. Her suggestion that she confronted the business secretary at the former matrimonial home and had her open a safe and there saw Ecstasy and approximately $4000 cash, where there is no evidence as to what she confronted the secretary about, how she identified whatever it was that she saw as Ecstasy and what her experience with the drug Ecstasy in the past might have been to enable her to identify by sight what Ecstasy is, remains to be explained, probably in the fullness of time at a final hearing in cross-examination. And there is no evidence as to how, by sight or by any other means, she identified approximately $4000 in the safe. If the mother seriously considered that the father was dealing drugs, then one might have expected she might go to the police. There is no evidence she did. Dealing drugs in the way that she suggests would seem, inferentially, to be an indictable offence and, as I understand it, it is potentially a criminal offence not to report the matter to the police. But I will take that no further.
I have dealt already with the allegation concerning family violence. There is no evidence of any family violence orders. The mother’s evidence is that she has never applied for any.
These are interim proceedings and therefore of necessity, there cannot be any reduction in the likelihood of a continuation of proceedings by any order that I make and I am not satisfied there is any other fact or circumstance relevant.
Under section 61DA, the Court is to apply a rebuttable presumption, subject to subsection (2), that it is in the children’s best interests that their parents have equal shared parental responsibility for them. Neither the father nor the Independent Children’s Lawyer sought a parental responsibility order. Counsel for the father did not address this issue in submissions. The mother sought a sole parental responsibility order. The Independent Children’s Lawyers suggested that, in the circumstances of this particular case, at an interim stage, in light of the extensive factual dispute between these parents, it would not be appropriate for the Court to allot parental responsibility beyond the default position as it would stand without any order at all under the Act.
I have regard to subsection (2) of section 61DA and I have to say that, as I have already indicated, there is certainly evidence from the mother of one occasion of family violence that I cannot simply disregard, albeit it is denied by the father. Under subsection (2) of section 61DA, the rebuttable presumption does not arise if there are reasonable grounds to believe that there has been family violence, to paraphrase the section. If one accepts the mother’s evidence as true, and I cannot say it is not but I cannot say it is, then subsection (2) would be engaged.
Subsection 61DA(3) provides:
When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
Subsection (3) is not intended to negate subsection (2) in interim proceedings. But, as was put to me by the Independent Children’s Lawyer, in light of the extensive factual dispute between the parties and the seriousness of the issues upon which they are in dispute, I am satisfied that this is one of what I consider should be the relatively rare example of interim matter where the Court should not apply the presumption and in fact I am satisfied I should not make any parental responsibility order at all. I cannot, at this stage, be satisfied that it would be in the children’s best interests for the mother to have sole parental responsibility and I will not make that order.
It is thus not necessary for me to consider section 65DAA.
I am satisfied that it is in the children’s best interests for them to remain living with their mother. I am satisfied that she has habitually been their primary carer and I am satisfied, notwithstanding the father’s criticisms of her parenting and the criticisms otherwise made of her parenting in his case, that she, on the current evidence, is better able to meet their needs.
So far as where the mother should live with the children, whether the children would better be with the mother in Sydney or in Adelaide, I have already adverted to the problem that, if they remain in Adelaide, the time with the father can be less frequent than in Sydney. That is a disadvantage to these children and restricts their ability to benefit from a meaningful relationship with their father. But on the other hand, I am satisfied that requiring the mother to move with the children to Sydney, as she said she would do if I ordered the children to return, would significantly compromise the parenting capacity of the primary carer.
The evidence before me at this stage satisfies me that the mother has engaged appropriately with support services, including professional support services. I am not satisfied, at this stage, that there is any identifiable current risk of a recurrence of the mother overdosing as she did in 2009. I am not satisfied that there is credible evidence that there is any current risk, as the father asserts, and that part of his case I am not satisfied has been made out. I will not refer specifically to the evidence of the psychologist in the mother’s case but I do have regard to that and also to the other evidence that is before the Court, including the medical records at the time and subsequent to the mother’s overdose in 2009 and the support services that the mother has currently engaged.
I am, therefore, satisfied that it is in the children’s best interests that they remain with the mother in Adelaide and not return to the Sydney area.
So far as the time that the children should spend with the father, I am not satisfied that the children’s time with the father should be supervised. Whatever the truth may be behind the mother’s allegations about, as she described it, the father “slamming” the elder child’s head on the floor and the wall, the mother’s failure to take any action at all consistent with that child ever having experienced such violent trauma satisfies me that the mother at least is exaggerating whatever may have occurred.
I am not satisfied that these children are currently at risk with their father, putting the mother’s evidence, as it might reasonably be regarded, at its highest, and it is not reasonable to put it as high as the mother expressed it. In those circumstances, bearing in mind that it was indicated on behalf of the father that if the Court found the children should remain in Adelaide that he would not seek to be heard against the time arrangements proposed by the Independent Children’s Lawyer, subject to also seeking some specific time with he children around Christmas, that is the order that I intend to make.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Halligan FM

Associate:

Date: 20 December 2012