COULSTON & WALTERS

FEDERAL CIRCUIT COURT OF AUSTRALIA

COULSTON & WALTERS

[2015] FCCA 1751

Catchwords:
FAMILY LAW – Mother relocates children from New South Wales to Western Australia during the course of proceedings – whether it is in best interests of children to be returned to (omitted) pending final hearing.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZW

C and S [1998] FamCA 66
Goode & Goode [2006] FamCA 1346
Morgan & Miles [2007] FamCA 1230
MRR v GR [2010] HCA 4

Applicant:

MS COULSTON

Respondent:

MR WALTERS

File Number:

SYC 7243 of 2010

Judgment of:

Judge Altobelli

Hearing date:

27 May 2015

Date of Last Submission:

27 May 2015

Delivered at:

Wollongong

Delivered on:

4 June 2015

REPRESENTATION

Counsel for the Applicant:

Ms Dart

Solicitors for the Applicant:

RMB Family Law

Solicitors for the Respondent:

PJ Carey Solicitor

Solicitors for the Independent Children's Lawyer:

Verekers Lawyers

ORDERS

That the matter be adjourned to 25 August 2015 at 9.30am for Mention.
That the Parents are to forthwith do all acts and things necessary, and if possible assisted by the Independent Children’s Lawyer, to ascertain if the Children, X born (omitted) 2006 and Y born (omitted) 2008, can be re-enrolled in their previous school in the (omitted) area.
That in the event that the Children can be re-enrolled as per Order 2 above, the parents are to forthwith do all acts and things necessary to enrol the Children in the school in the (omitted) area.
That the Mother is to do all acts and things necessary to cause the Children to be returned to the (omitted) area after 3 July 2015 but before 13 July 2015.
That until the children return to the (omitted) area in accordance with these Orders, the Orders made by Judge Sexton on 23 March 2015 relating to the Father’s supervised time with the Children are to continue.
That upon the Children’s return to the (omitted) area, the Orders made 23 December 2014 relating to the Father’s supervised time with the Children are reinstated.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Wollongong

SYC 7243 of 2010

MS COULSTON

Applicant

And

MR WALTERS

Respondent

REASONS FOR JUDGMENT

Background

The matter relates to two children, X, born (omitted) 2006, 8 years old, and Y, born (omitted) 2008, 6 years old.
The Application came before me for interim hearing on 27 May last week. The matter initially came before the Court by way of the Father’s Contravention Application filed in October. The Mother filed an Application in a Case, in effect, in response to that on 24 October, seeking a number of orders, for example, to suspend the existing orders for the children to spend time with the Father, a transfer to this Court, supervised contact and so forth.
During the course of proceedings, it appears that the Mother relocated the children and herself to Western Australia. I can provide a brief chronology of the relevant events. The parents appear to have cohabited in (omitted) 2000. I have given you the dates of birth for the children in 2006 and 2008. The parties separated in October 2010, and there were some interim consent orders on 20 December 2010 and final consent orders on 13 May 2011. Those orders provided, in effect (and remember, these are consent orders) that the children live with their mother, that they spend time with their father each alternate weekend from Friday to Sunday, in the case of X, each Wednesday night, and then one five-day block school holiday period over Christmas.
If I were to rely simply on the material filed on behalf of the Mother, and in fact, I’m prepared to do that, that is to say, to accept the Mother’s case at its highest – she says that the Father spent time with the children in accordance with the consent orders from May to October 2011, but by October 2011 the Wednesday night contact ceased. She says the father moved to Sydney in April 2012, but he spends time with continued on alternate weekends. However, he returned to (omitted) and commenced living in (omitted) in October 2012. The Mother says that in October 2012 she obtained an Apprehended Violence Order (“AVO”) against the Father. She says that he moved to (omitted) in December 2014 but returned to (omitted), commenced living at (omitted) and then (omitted) in January 2014. According to the Mother, in March 2014 the Father sent her a text message saying that he couldn't have time with the children. She became concerned about the Father’s drug use and homelessness.
Other relevant matters in the chronology include the following. The parents attended mediation in July 2014. This does not appear to have lasted long or to have had any effect. In October and November the Father tested positive to cannabis a number of times, indeed, I think a total of four times in that period. Between February and December 2014, the Father did not spend any time with the children and the Mother deposes in her Affidavit to withholding this time due to the concerns she had about the Father’s drug use and lifestyle. The AVO was made final in November 2014, and then, pursuant to consent orders entered into on 23 December 2014, the Father’s time resumed. Indeed, the order was that the children live with the Mother, spend time with the father on daytimes only and supervised.
I make this observation as we go through this chronology that, insofar as the Mother’s motives for ceasing contact between February and December 2014 were motivated by concerns about the Father’s drug use, this does seem substantiated, or certainly corroborated, from the material before the Court.
The Mother, in her evidence, deposes to “receiving notice” of her husband’s posting to Western Australia on 29 December 2014. On 23 January 2015 the Mother’s solicitor advised the Father’s solicitor of the posting, and by 2 February 2015, the children started at (omitted) public school, just outside of Perth in Western Australia.
On 23 March 2015, orders were made by Judge Sexton that, on an interim basis, allowed the children to continue to live with the Mother in Perth and for the Father to spend time with the children on a supervised basis. I was informed by the parties during the course of the interim hearing that Judge Sexton did not conduct an interim hearing and that it was left to me, in effect, on 27 May. That is the relevant chronology for present purposes.

The Evidence

In effect, the matter that comes before the Court is the consequences on the children of the Mother’s move from (omitted) to Western Australia late in February 2015.
The Father’s application is, or the orders he seeks are, set out in the Case Outline document that was filed on his behalf. The Father also relies on the following documents:
·Affidavit of Mr Walters sworn 18 March 2015;
·Affidavit of Mr Walters sworn 19 March; and
·Affidavit of Ms F sworn 19 March 2015.
He seeks, in effect, that the Mother and the children be compelled to return to (omitted) and be restrained from relocating and that they spend time with him on the basis that he proposes. It should be noted that the Father was actually seeking each alternate weekend time with the children and a number of ancillary orders.
The orders that the Mother seeks are set out in her case outline. The Mother also relies upon the following documents:
·Initiating Application filed 13 February 2015;
·Affidavit of Ms Coulston sworn 13 February 2015;
·Affidavit of Ms Coulston sworn 23 October 2014;
·Affidavit of Ms L sworn 20 May 2015;
·Affidavit of Mr M sworn 20 may 2015; and
·Affidavit Ms Coulston sworn 20 May 2015.
The Mother proposes, in effect, that the children continue to live with her in Perth. She seeks a formal order that permits her to relocate to Western Australia and that the children spend supervised time with their father during mid-term school holidays, Christmas holidays, and during the course of submissions, there was also, in effect, a proposal to spend time mid-term. The various orders proposed will be simply incorporated into these my reasons.
The children are represented by Mr Williamson as the Independent Children’s Lawyer, and he provided a case outline document. I acknowledge that I was greatly assisted by the case outline documents provided by each of the parties, and I will simply incorporate the contents of those as schedules into my reasons. In particular, I was assisted by the summaries of the evidence contained in the Independent Children’s Lawyer’s case outline and his analysis of the relevant s 60CC considerations, and indeed, after having looked at all the evidence in this case, it is hard to cavil with the matters that he asserts on behalf of the children.
The other evidence in this matter included the Child Dispute Conference Memorandum and there were a number of documents that were produced on subpoena and tendered, including from the Australian Federal Police, the New South Wales Police, the Child Inclusive Conference Memorandum and documents that have been produced by the (employer omitted). In addition, there is a bundle of documents produced pursuant to s 69ZW that contains various departmental records.

The Applicable Law

In determining parenting matters under Part VII of the Family Law Act 1975 the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(1)    The objects of this Part are to ensure that the best interests of children are met by:
(a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)    parents should agree about the future parenting of their children; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)    to maintain a connection with that culture; and
(b)    to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)    to develop a positive appreciation of that culture.
At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)    family violence.
(3)    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.
(4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)    If:
(a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a)    the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)    the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)    how far apart the parents live from each other; and
(b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)    the impact that an arrangement of that kind would have on the child; and
(e)     such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.

In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c)   consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of that section and the way to proceed and I will incorporate into these reasons a number of paragraphs from the Full Court’s judgment.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The Full Court in Morgan & Miles [2007] FamCA 1230 made a number of comments relevant to the circumstances that arise in the present case in paragraphs 82 to 88. This is a decision of the Full Court constituted by a single judge, Boland J.
82. It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.
83. I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.
84. The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.
85. In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph. Whilst lengthy, it aids understanding to set out the relevant passages from Goode:
71. The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
73. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).
86. I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.
87. As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
88. It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.
Paragraph 27 of the same judgment states:
27. His Honour cited the judgment of the Full Court in C and S [1998] FamCA 66 and quoted from the judgment of Warnick J, with whom Ellis and Lindenmeyer JJ agreed, who said:
In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a relocation, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents from what it or they had been immediately beforehand.

Discussion

There are a number of uncontested facts. There are some admissions, admissions that have been made in the material, and there is also what I will describe as ‘uncontestable’ facts, in the sense that the evidence before the Court points strongly to findings about these issues. For example, it is quite clear what the consent orders that were made on a final basis in 13 May 2011 provided for. When one looks at the Mother’s evidence, she agrees that the Father spent time with the children, though not necessarily consistent with the orders made, until February-March 2014. It seems uncontestable that the children did not spend any time with their father between February-March and December 2014.
On 23 December 2014, an order appears to have been made for the children to live with the Mother, for urinalysis, a number of injunctions and for the Father to spend time with the children in accordance with that order.
What appears uncontestable, or certainly is an admission, is that, on 29 December the Mother received notice of a posting of her husband. However, a more objective view of the documents produced on subpoena, particularly by the (employer omitted), suggest that she knew before that date about the posting and possibly as early as 24 November 2014. Another uncontested fact is that the Mother indicated to the Court through her Counsel that whilst it is certainly not her primary position, if the children were ordered to return to (omitted), she would return with them and live at the home of the maternal grandparents. Another uncontestable fact is that the family report interviews are on 29 July 2015.
I am required to consider the matters before the Court by reference to the primary and additional considerations that are set out in s.60CC of the Family Law Act 1975 (“the Act”) and by reference to the proposals that each have advanced.
Section 60CC(2)(a) talks about meaningful relationship. The current orders in place before the Mother unilaterally relocated to Western Australia provided for four hours weekly time between the children and their father supervised by the paternal grandparents. It is significant to note that these orders were dated 23 December 2014.
These orders were made in a context where there were concerns about the Father’s drug use, homelessness and erratic behaviour and where the Mother had not allowed any contact for the 10 months period in 2014 that I have referred to. I am satisfied that these orders provided in the minimalist way for the children to have a meaningful relationship with their father. The Father’s proposal before the Court would see an improvement of that. The Mother’s proposal before the Court would see the frequency of the Father’s time reduced to, in effect and at best, once a school term and for one period during the school term and one period in the school holidays. It is hard to see how the Mother’s proposal on the evidence before the Court is able to sustain, let alone advance any meaningful relationship between the Father and these children. Of course, the Court does not rule out the possibility that at a Family Report, when Court will probably get its most objective and expert insight into the nature of the Father’s relationship with the children, that perhaps it is not as deep as what has been suggested here. But, until then, one must look at meaningful relationship in the prospective sense that some of the authorities had discussed.
Section 60CC(2)(b) talks about protecting the children from harm. The Mother makes some very serious allegations against the Father in relation to drugs, family violence, abuse, erratic behaviour and, at times, homelessness. In assessing the risk to the children, these allegations need to be examined carefully. In this exercise, again, the Court is prepared to rely entirely on the Mother’s own evidence about these matters and set out in her Affidavit. In other words, she is going to be given the benefit of the doubt. Her case about the Father is going to be taken at its highest. The Court declines, though, in the present context to place any weight on the Mother’s allegations that precede the final consent orders made by Monahan FM (as he then was) on 13 May 2011. The Mother agreed, in those orders, that the children spend time with the Father each alternate weekend Friday to Sunday and, as I have indicated, for X each Wednesday night and then the block period in the school holidays. It is simply inconceivable to the Court that the Mother would allow her children to spend time with the Father for as much time as she agreed to in the context of the allegations about the Father that she never makes about him before that date. Possibly the allegations are untrue, possibly the allegations are exaggerated, and there are other possibilities; but whatever her concerns were at the time, those concerns did not apparently preclude her from agreeing to the time that she agreed to. Hence the focus must turn to events after May 2011.
Again, the Court relies only on the Mother’s evidence in that regard. In a close examination of the Mother’s evidence, it suggests that it was not until February or March 2014 that her concerns about the Father’s behaviour were such as to cause her to unilaterally cease time until December 2014. She was concerned about his drug use, family violence and abuse and homelessness. Drug use is, as I have already indicated, substantiated by the Father’s positive urine tests in October and November 2014. The family violence and abuse is possibly corroborated by the AVO made in November 2014, but the Father’s perspective on these events needs to be acknowledged in the sense that he says that he was simply trying to spend time with the children in accordance with orders that had not been changed even though those acts gave rise to the making of an AVO.
In any event, the matter came before the Court on 23 December 2014 and orders were made for the Father to spend time with the children. In effect, on that day a risk assessment was undertaken at an interim level and the Court found that there was no unacceptable risk to these children if the Father’s time was supervised. There was no appeal from this decision. Having regard to the above, it cannot be suggested that there is any unacceptable risk of harm to the children if their time with the father is supervised. In other words, risk factors are mitigated by supervision.
There is no material before the Court that causes it to reconsider the view it formed on 23 December. If anything, the Father’s negative urine tests since that date mitigate the risk. In short, provided the Father’s time is supervised, there is no unacceptable risk to these children.
The Act requires me to consider the children’s views. They are 8 and 6, so there is limited evidence about those views and what evidence there is, is evidence in respect of which I place no weight in the present context.
I am required to consider the children’s relationships with each of their parents and other sufficient adults in their lives. One can only form an impression about this. It is quite possible that the Father’s relationship with these children is tenuous. The Child Inclusive Conference Memorandum refers to the children experiencing their father as distant and they expressed some ambivalence about him. Unquestioningly, there is a stronger parental relationship with their mother. The Court’s concern is that if the Mother’s proposal were accepted, the tenuous relationship that the children have with their father would be further jeopardised. On the Father’s proposal, as the Mother has indicated that she will return to (omitted) if the children are so ordered to return, there is less harm to the children because that maintains the children’s primary relationship with their mother.

I am required to consider the significance of participating in decision-making and spending time with the children and communicating with them. The Father feels that he has been excluded from the children’s lives since February 2014 without any justification. The Mother feels that he absented himself from the children’s lives for no reasons attributable to her. The reality is probably more complex. Certainly, by October-November 2014 when the Father was producing positive drug tests, the Mother was well-justified in not allowing time as per the orders then current. The Mother’s actions in unilaterally relocating to Western Australia and thus dramatically reducing the opportunities for the Father to be involved in the children’s lives, however, smacks very loudly of an indifference by her about the significance of these issues for the children and the exclusion of their father in any opportunity in decision-making, time or communication.
The Court is required to consider the extent to which parents have fulfilled their obligations to maintain their children. This is clearly not a determinative consideration in an interim hearing like this one and I do not understand it to be asserted by anyone that it should be.
The Court is required to consider issues of practical difficulty and expense in the context of relationships. From the Father’s perspective, the distance presents a significant practical obstacle to even complying with the orders proposed by the Mother. She does suggest, and quite properly to her credit, that she would bring the children to (omitted) at her expense for midterm visits. One must wonder how sustainable that is on anything other than an interim and short-term basis. If the Mother returns, as the Father seeks an order to the effect of, there are no such issues of practically difficulty and expense.
The Court is required to consider the likely effect of change on children. At one level the greatest concern about bringing the children back to the (omitted), on the father’s proposal, is the significant change that that brings about in their lives. Indeed, there was some evidence to suggest that they might not even be able to return their old school, though they would at least be living with, according to the Mother, the maternal grandparents. But this change needs to be seen in the broader context of a number of other things. Firstly, the enormous changes that the Mother brought in the children’s lives and which she says they have coped with; and secondly, the reality that on the objective evidence before the Court, they are likely to return to (omitted) anyway in 2016, as the Mother’s partner’s posting as viewed on the material before the Court, would seem for a one-year period. In these circumstances, change is not as unavoidable as it hopefully should be ideally in children’s lives, nor as great as it seems.
If the Mother returns with them to the (omitted), as she says she will, and if they live at the maternal grandparents’ home as the Mother suggests, then the Court believes that these changes will be manageable. Importantly, in the present context it will enable them to continue to work on their relationship with the Father.
The Court is required to consider issues of parental capacity. There are clear issues, though these are yet to be thoroughly tested, about the Father’s parenting capacity. A few clean drug tests do not mean that he no longer has a drug abuse problem and if he does have a problem there is no doubt that this Court will find that it impedes his capacity to care for the children. If he is found at a final hearing to be violent or abusive, likewise that will affect his capacity to parent. Any such issues about parental capacity do not arise in the context of spending time with children supervised.
Likewise, there are issues about the Mother’s capacity to provide for the children’s emotional needs. Her actions in unilaterally relocating to Western Australia suggest a real failure to appreciate the potential importance to the children of having a father meaningfully involved in their lives – something which becomes very difficult in Western Australia. Her seeming ambivalence about the children’s Aboriginality is also an issue, as their potential desire to identify with this part of their cultural heritage is potentially an important emotional need for them.
Indeed, the Act requires me to consider the children’s Aboriginal culture and background. The children’s father is of Aboriginal background. In the Child Inclusive Conference Memorandum, the Mother acknowledges she has limited ability to promote the children’s Aboriginal heritage and culture. The Father justifiably raises concerns about the Mother’s ability to encourage this part of the children’s heritage from Western Australia. The parents should not underestimate the potential importance of this issue at the final hearing. Even at an interim hearing, it is significant. Limited contact with the Father and the Father’s family means limited opportunities to enjoy their Aboriginal culture and heritage, and this is a factor pointing towards the return of the children.
The Courts are required to consider parental attitudes. This, the Court suspects, will feature as a significant issue at a final hearing. Many issues arise. For example, was the Mother justified in suspending the children’s time with the Father in 2014? Did the Father’s actions in this period justify suspension of the time? What was the nature and extent of the family violence and drug issues? Other than signalling the potential significance of all of these issues, there’s not much that can be said about them at an interim hearing.
Much can be said, and indeed, much was said, about the Mother’s unilateral relocation to Western Australia in the course of the present proceedings. When all the evidence is considered, her relocation was gobsmackingly audacious, taking place when it did, and her stated explanation is supercilious and unconvincing. Of greatest concern, however, is what seems to have been an attempt to mislead the Court about when the Mother’s partner was told of his posting from (omitted) to Western Australia. She deposes at paragraph 33 of her Affidavit of 13 February 2015 that it was 29 December 2014. The documents produced by the (employer omitted) suggest that it was probably earlier, indeed much earlier, possibly as early as 24 November 2014. It is simply not plausible that a decision having been made on 24 November 2014 to approve the transfer was not told to him until 29 December, in circumstances where his posting commenced on 19 January. It beggars belief to suggest that he would be given such a limited time to relocate his entire family from one coast of Australia to the other on such short notice.
What is particularly ironic about the attitude behind the Mother’s actions is something that she herself criticises the Father about at paragraph 10 of her Affidavit of 13 February 2015. In discussing the Father’s relocation from (omitted) to Sydney in April 2012, she deposes:
He relocated without first consulting me about how it would affect the arrangements for the children.
Of course, if the Mother gave any consideration as to how her relocation with the children might affect their arrangements to spend time with the Father, there is no convincing evidence of this. It is the proverbial pot calling the kettle black.
In April 2012, the Mother knew precisely what the issue was, that is, the impact of a move by one parent on arrangements for the children to spend time. Yet that is exactly what she did in 2014, thus raising serious concerns about her parental attitudes and of her responsibility as a parent. The Court cannot be satisfied, having regard to the evidence before it, that the Mother would do anything to sustain the Father’s relationship with these children if she and the children remain in Western Australia and the Father in (omitted).
The Court is required to consider family violence and family violence orders made. I’ve already said many things about family violence. It is a serious issue. It will be taken very seriously in the context of a final hearing. The orders that are in place, however, are adequately protective.
The Court is required to make orders that are in the best interests of the children, having regard to all of the matters set out above. In the Court’s assessment, s.60CC considerations weigh in favour of the children’s return to (omitted), especially in a context where the Mother has indicated that she will return with them, that there is accommodation with the maternal grandparents, and especially in circumstances where the evidence before the Court suggests that her partner’s posting was only until early next year anyway, that is, the inference to be drawn is that they were probably going to return.
The Western Australian school term 2 ends on 3 July 2015. The New South Wales school term 3 commences on 13 July 2015. The Court will make orders that the children be returned before the commencement of term 3. The order will be made that the parents are to forthwith do all things possible to see if the children can be re-enrolled in their previous school. I understand the Mother’s evidence, that it may well be, perhaps even with the assistance of the Independent Children’s Lawyer, that the school might be prevailed upon to take the children back.
The order for the Father to spend time with the children is to revert to the one that was in place before the mother relocated. There is no basis on the evidence before the Court to vary the orders as he proposes. Indeed, his proposal was premature, to say the very least. The Family Report should be available by early August and that will provide an opportunity to re-visit the most appropriate spends time with arrangement so far, as the Father is concerned.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate:

Date: 1 July 2015

Schedule one

CASE OUTLINE ON BEHALF OF APPLICANT MOTHER

LIST OF DOCUMENTS

Initiating Application filed 13 February 2015;

Affidavit of Ms Coulston sworn and filed 13 February 2015;

Affidavit of Ms Coulston sworn 23 October 2014.

Affidavit of Ms L sworn 20 May 2015.

Affidavit of Mr M sworn 20 May 2015.

Affidavit of Ms Coulston sworn 20 May 2015.

CHRONOLOGY

(omitted) 1972 Respondent Father born (43 years old)
(omitted) 1980 Applicant Mother born (34 years old)

(omitted) 2000 Applicant and Respondent cohabitate

Applicant and Respondent marry

(omitted) 2006 X born (8 years old)
(omitted) 2008 Y born (6 years old)
10/2010Applicant and Respondent separate

Apprehended Violence Order made against Respondent protecting Applicant

17/10/2010Applicant files application for parenting orders at Federal Magistrates Court at Sydney
13/05/2011Orders made by Consent by Federal Magistrates Court at Sydney

(omitted) 2013 Applicant marries Mr M

10/2012Apprehended Violence Order made against Respondent protecting Applicant

(omitted) 2014 Applicant has child Z (aged 1 year old)

03/2014 X and Y cease spending time with the Respondent

15/10/2014Respondent files Contravention Application at Nowra Local Court
24/10/2014Proceedings transferred by Consent to Federal Circuit Court at Wollongong
10/2014 – 11/2014 Respondent tests positives to cannabinoids and opiates
14/11/2014Apprehended Violence Order made against Respondent protecting Applicant
23/12/2014Interim Orders made by His Honour Judge Altobelli that:
·Orders 13/05/2011 are suspended;
·X and Y to live with Applicant; and
·X and Y to spend supervised time with Respondent.

01/2015Applicant relocates to Western Australia

ORDERS SOUGHT

That the Consent Orders made by the Federal Circuit Court of Australia at Sydney on 13 May 2011 be discharged.
That the Applicant Mother have sole parental responsibility for the children X born (omitted) 2006 ("X") and Y born (omitted) 2008 ("Y") collectively known as "the children".
That the children live with the Mother.
That the Mother and children be permitted to relocate to Western Australia.
That the children spend supervised time with the Father as follows:
5.1During mid term school holiday periods for four (4) hours on each alternate day by agreement and if failing agreement between 10.00am and 2.00pm;
5.2During the Christmas school holiday periods for four (4) hours on each alternate day for a total period of no longer of fourteen (14) days;
5.3At other times as agreed.
That the time that the children spend with the Father is to be supervised by the Paternal Grandparents.
That in order to facilitate changeover, the Paternal grandparents are to collect the children from the Mother or the Maternal Grandparents at the residence of the Maternal Grandparents at the commencement of their time with the Father and the Mother or the Maternal Grandparents are to collect the children from the Paternal Grandparents at the (omitted) Shopping Centre at the their completion of their time with the Father.
That the Father be restrained by injunction from using any prohibited drugs within forty eight (48) hours of spending time with the children.
That the children’s flight costs necessary to facilitate these Orders shall be paid by the Mother.
That the children have telephone communication with the Father twice per week on a Wednesday and a Sunday at 8:00pm Australian Eastern Standard Time, with the Father to initiate a telephone call to (omitted) and the Mother to endeavour that the children are available to take the telephone call.
That:
11.1The Father within seven days inform the legal representative of the Mother of the name and address of his local general practitioner.
11.2The Father submit himself to urinalysis every month under the supervision of his local general practitioner.
11.3The Father submit himself to urinalysis under the supervision of his local general practitioner at such further times as the legal representative of the Mother might randomly nominate in writing to the legal representative for the Father on no more than one occasion in each month.
11.4The Respondent Father do all things to make available to the legal representative of the Mother the results of such urinalysis testing.
11.5Liberty be granted on 48 hours notice to make any application in respect of the implementation of these Orders.
That the Mother be at liberty to amend her Application upon preparation of a Family Report and/or other such expert report.

SUBMISSIONS

S 60CC(2) Primary Considerations

(2)(a) the benefit to the children of having a meaningful relationship with both parents:

The Applicant submits that her proposal for the children to live with her and spend time with the Respondent on a supervised basis in the presence of their paternal grandparents will allow the children to have a meaningful relationship with both of their parents.
Whilst Applicant will live in Western Australia, the Applicant proposes that she will pay for children to travel to New South Wales in school holiday periods in order to spend time with the Respondent. The children will also be able to communicate regularly with the Respondent by telephone.

(2)(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence:

The Applicant's proposal protects the children from physical or psychological harm and from being subjected to neglect and family violence by requiring the time the children spend with the Respondent to be supervised by the paternal grandparents. The Applicant submits that the supervision is required given the Respondent's lack of stable accommodation, use of illicit drugs and volatile behaviour.
The Applicant submits that changeover will be facilitated by either the Mother or her agent and the paternal grandparents and will therefore avoid the parents coming into contact with each other and the children being exposed to parental conflict.
The Applicant further submits that random urinalysis of the Respondent will ensure that the children are not in the presence of the Respondent in the event that he is under the influence of illicit drugs.
S 60CC (3) Additional Considerations:

(3)(a) any views expressed by the children and any factors (such as maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views:
The children are 6 and 8 years old and have expressed to the Applicant psychologist Dr L that they are anxious and worried about their safety and the Applicant's safety around the Respondent. The eldest child X reported to Dr L that she has nightmares about her dad and that "she is scared that he will hurt mum" and further that "my real dad is trying to get us to come to his home, we don’t want to". Both children have expressed a view that they are scared of the Respondent.
The children have also been left physically distressed when they have been approached by the Respondent in the school grounds and report as a result of these incidents that they are scared that the Respondent will take them away from their Mother.
Given the children's ages and their views expressed to the Applicant, Dr L and the reaction of the children after the Respondent's attendance at their schools it is the Applicant's submission that the supervision of the Respondent's time with the children is required to ensure that the children do not become inconsolable and/or distressed.
- (3)(b) the nature of the relationship of the children with each parent and other persons (including any grandparent or other relative):
Since birth the Applicant has been the primary parent for both children and accordingly they have a strong attachment to the Applicant.
Since separation (4.5 years ago) the children have continued to be in the primary care of the Applicant. The children have established a secure bond and loving relationship with the Applicant and have also have developed a strong relationship with their step father Mr M and adore their younger brother Z, aged 1 year.

The children have spent significant time with the Respondent since separation, however the children have expressed views and displayed behaviours to the Applicant, Dr L and their teachers that they are scared of the Respondent and anxious about their safety and their Mother's safety because of the Respondent.

(3)(c) the willingness and ability of each of the children's parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent:

The Applicant has previously facilitated a relationship between the children and the Respondent; however when she was concerned that the children would be at risk in the Respondent's care the Applicant took steps she thought necessary and reasonable to ensure the children's safety by not sending the children to spend time with the Respondent, due to concerns she had about the Respondent using illicit drugs, his lack of stable accommodation and his ability to provide adequate food for the children.
The Applicant is willing to again facilitate a relationship between the children and the Respondent, provided that the children are protected from any risk and/or harm.
The Applicant submits that regular telephone communication between the Respondent and the children, supervision of the children when in the presence of the Respondent, changeover arrangements that avoid parental interaction and provision of urinalysis by the Respondent will minimise the risk of the children being exposed to harm when spending time with the Respondent.

(3)(d) the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either parent or any other child or other person (including any grandparent or other relative), with whom the children have been living:

The children since separation have been in the primary care of the Applicant who has responsibly provided for all of their needs.
The Applicant submits that although the Children have recently relocated to Western Australia (as a result of a posting of Mr M to (employer omitted)) the children are settling in well to their new environment, attending (omitted) Primary School, making friends and attending dance lessons, acrobatics and netball in the area.
Because Mr M and the Applicant are financially responsible for providing for the children and because of Mr M's employment in (employer omitted), it would have been impracticable for Mr M to relocate without the Applicant and their young son Z, therefore the Applicant submits that the relocation was a necessity for their family.
The Applicant is able to fund the cost of the children travelling from Western Australia to spend time with the Respondent and extended paternal and maternal family members during school holidays.

(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis:

The Applicant accepts that she will be responsible for the cost of the children's flights to enable them to spend time with the Respondent during each school holiday period. The Applicant and the children will have accommodation when they return to the (omitted) area with the Applicant's parents (where the Respondent currently resides) which will then enable the children to spend time with Respondent each alternate day during the school holiday periods.
The Applicant or her agent (likely to be one of the maternal grandparents) will be responsible for facilitating changeover with the paternal grandparents. The Applicant wishes to avoid all contact with the Respondent as do the maternal grandparents.

(3)(f) the capacity of each of the parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs:

The Applicant has been the primary caregiver and parent for the children since separating from the Respondent. The Applicant and her Husband Mr M have been responsible for providing a stable and loving home for the children.
The Applicant has been the parent responsible for supervising the children, nursing the children when sick, arranging day care and then schooling, medical treatment, extracurricular activities such as dancing and sport and generally provided for all of the children's day to day needs.
The Applicant and her Husband Mr M are solely financially supporting the children, with the absolute minimum compulsory contribution made by the Respondent from his Centrelink payments.
The Applicant is concerned that the Respondent is not capable of providing for the day to day needs of the children, including a positive role model and/or appropriate behaviour, stable accommodation, adequate food or that the Respondent is able to provide and support the emotional needs of the children. Further the Applicant is concerned that the Respondent's use of illicit drugs will impede his ability to parent.

(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either parent, and any other characteristics of the children that the court thinks are relevant:

The Applicant remains concerned that the Respondent who is known to Police and who has a history of illicit drug use and violence may still be using illicit drugs and that he has a reactive frame of mind which has in the past led to violent and aggressive behaviour.
The Applicant submits that as recently as 16 January 2015 the Respondent engaged in aggressive and anti-social behaviour in the presence of the children swearing and abusing a worker at a carnival after Y was refused entry to a ride.
The Applicant notes that the Respondent has for a significant period of time remained unemployed and without stable accommodation, living at family members home or in his motor vehicle.
The Applicant is also alarmed by the Respondent's association with certain organisations such as the "(omitted)" and the threats of physical violence published by the Respondent on his Facebook account, together with derogatory comments made by the Respondent, his family and friends on Facebook about the Applicant.
The Applicant submits that she is a capable and loving parent and that she has demonstrated this by solely caring for and providing for all of the children's needs since separation. The Applicant works 4 days per week during school hours as a (occupation omitted). The Applicant is available to supervise the children and take them to and from school as well as to their extracurricular activities. The Applicant has made the safety of the children a priority and has demonstrated that she is child and family focused.

(3)(h) if the children are Aboriginal or Torres Strait Islander the children's right to enjoy their Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right:

The Respondent is Aboriginal and the children will be able to maintain and share that culture with the Respondent and the paternal grandparents during the time they are to spend with him.

3)(i) the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the parents:

The Applicant has demonstrated that she takes a serious approach to providing for all of the needs of the children in a safe and loving manner. The children remaining with the Applicant in Western Australia will enable the children to remain in the stable family unit in which they have lived for a significant period of time.
The Applicant submits that the Respondent behaves erratically and unpredictably and that his behaviour including verbal and physical violence that may be triggered by illicit drug use.
Further the Applicant submits that the Respondent fails to provide a positive role model for the children, including no consistent employment and/or home accommodation over a sustained period of time.
The Applicant submits that the Respondent has in the past moved interstate or away from the children without consideration for how that would impact on his relationship with the children and this together with the Respondent's nominal contribution to the financial support of the children shows that the Respondent is not child focused in his approach.

(3)(j) any family violence involving the children or a member of the children's family:

The Applicant was the victim of physical violence during her marriage to the Applicant.
Since separation the Applicant has continued to be threatened, harassed and intimidated by the Respondent receiving numerous abusive telephone calls and text messages. This has led to three Apprehended Violence Orders being made protecting the Applicant from the Respondent.
Since separation, whilst the children have been in the care of the Respondent, he has engaged in verbal and physical acts of family violence with his then de facto partner and then left the children unsupervised without any adult present in the residence of his then de facto partner.

(3)(k) any family violence order that applies to the children or a member of the children's family, if the order is a final order; or the making of the order was contested by a person:

A final Apprehended Violence Order was made on 14 November 2014. The Order is in place for a period of 2 years. The Order protects the Applicant from the Respondent.
The Applicant's proposal ensures that the Applicant and Respondent do not come into contact with each other and that the children are protected from parental conflict and further that the children's time with the Respondent to be supervised to ensure that the children are kept safe and protected from risk of further exposure to family violence.

(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children:

This is an interim hearing only and further evidence and reports will be required to be obtained prior to final hearing and orders being made.

(3)(m) any other fact or circumstance that the court thinks is relevant:

Nil

S61DA

Presumption of equal shared parental responsibility when making parenting orders
The Applicant contends that the presumption should not apply because it is not in the best interests of the children for the children’s parents to have equal shared parental responsibility for the children, due to the existence of family violence to which the children have been exposed.
The Applicant is concerned that if parental responsibility was shared she would be unable to effectively engage with or consult with the Respondent in order to discuss items relating to the children's long term responsibility and accordingly it should be allocated to her solely.
Date: 22 May 2023

....................................................................................

Signed by (print name):

CLAIRE OSBORNE

SOLICITOR FOR APPLICANT

Schedule two

Case outline document for the respondent father.

List of Documents

Affidavit of Mr Walters 18^th March 2015

Affidavit of Mr Walters 19^th March 2015

Affidavit of Ms F sworn 19^th March 2015

SHORT CHRONOLOGY

(omitted) 1972 Father born 43 years old

(omitted) 1980 Mother born 34 years old

(omitted) 2006 Child X born 8 years old

(omitted) 2008 Child Y born 6 years old

10/ 2010 Parties separate

13/05/2011 Orders made by consent Sydney Federal Magistrates Court

2014/ Mother unilaterally suspends fathers time with the children

24/10/2014Contravention application of father mentioned in Nowra Local Court

23/12/2014 Interim Orders made in the Federal Circuit Court Wollongong

23/24/01/2015 Mother unilaterally relocates to Western Australia

Orders Sought

Interim Orders Sought

That the parties be jointly responsible for the long term care welfare and development of the children X and Y (the children) in relation to their schooling, the religious upbringing of the children, the health of the children, and any changes to their living arrangements that would make it more difficult for the children to spend time with the applicant father and their cultural heritage.

That the mother and the children return to (omitted) NSW and be are hereby restrained from relocating from the township of (omitted) without the express consent of the father or an order of a Court.

That the children spend the following time with their father:

a. Each alternate weekend from after school Friday to Sunday or Monday in the case of a long weekend .

b. One half of all gazetted NSW public school holidays.

c. On the birthday of the father and the children for a period of not less than 4 hours if those occasions are not during scheduled time with the father.

d. On Father’s day from 0900 to the following Monday morning.

e. At Christmas from 1700 Christmas Eve to 1.00 p.m. Boxing Day on even numbered year.

f. Such other times as may be agreed between the parties

That the mother inform and keep the father informed of all upcoming school and social activities that may involve the children and are such occasions where the patents would usually attend.

That the parties be and are hereby restrained from taking any non-prescription drugs and or alcohol for a period of 12 hours and during any time that the children are in this or her care.

That the respondent be known by the children as Dad and or Father and not addressed as Mr Walters and the mother shall ensure that the children do not refer to any other male as Dad or father.

That neither party speak about the other in derogatory and demeaning terms in the hearing of the children and prevent any other person from doing so.

That the parties are restrained from discussing the current proceedings with or in the hearing of the children.

That in the event the mother requires the father to undertake drug testing then the mother shall be responsible for the costs of those tests and those costs shall be paid to me or to the laboratory by the mother upon issuing any such request. .

That the mother pay the Legal Aid Commission the costs of this matter

Final Orders Sought.

1. That the parties be jointly responsible for the long term care welfare and development of the children X and Y (the children) in relation to their schooling, the religious upbringing of the children, the health of the children, and any changes to their living arrangements that would make it more difficult for the children to spend time with the applicant father and their cultural heritage.

2. That the mother and the children return to (omitted) NSW and be are hereby restrained from relocating from the township of (omitted) without the express consent of the father or an order of a Court.

3. That the children spend the following time with their father and mother on an equal shared basis in the following manner:

a. On a week about basis the children shall spend equal time with each parent. Such time shall commence at the end of school, during scheduled school term, each Friday.

b. On special occasions during non-school periods as follows:

c. One half of all gazetted NSW public school holidays.

d. On the birthday of the father and the children for a period of not less than 4 hours if those occasions are not during scheduled time with the father.

e. On Father’s day from 0900 to the following Monday morning.

f. At Christmas from 1700 Christmas Eve to 1.00 p.m. Boxing Day on each even numbered year.

g. Such other times as may be agreed between the parties

4.     That the mother inform and keep the father informed of all upcoming school and social activities that may involve the children and are such occasions where the patents would usually attend.
5.     That the parties be and are hereby restrained from taking any non-prescription drugs and or alcohol for a period of 12 hours and during any time that the children are in this or her care.
6.     That the respondent be known by the children as Dad and or Father and not addressed as Mr Walters and the mother shall ensure that the children do not refer to any other male as Dad or father.
7.     That neither party speak about the other in derogatory and demeaning terms in the hearing of the children and prevent any other person from doing so.
8.     That the parties are restrained from discussing the current proceedings with or in the hearing of the children.
9.     That in the event that the mother requires me to undertake drug testing then the mother shall be responsible for the costs of those tests and those costs shall be paid to me or to the laboratory by the mother upon issuing any such request.
10.   That the mother pay the Legal Aid Commission the costs of this matter on an indemnity basis..
SUBMISSIONS.
Family Law Act Section 60CC
Primary Considerations
60CC 2 (a)       Having a meaningful relationship with the children
The mother unilaterally suspended the father having time with the children in mid-2014. The father filed a c Contravention supplication in the Local Court at Nowra and the matter was transferred to the Federal Circuit Court at Wollongong. In the time between the filing of the contempt application and the interim orders made by consent 23^th December 2014 the mother steadfastly refused to allow the children any time with their father. The father then had time with the children and his affidavit and that of his parents provides that the children were relaxed and happy in his presence.

60CC 2 (b)The need to protect the children from physical or psychological harm.

The father provides in his affidavit and that the Paternal Grandparents that children were relaxed and happy in his presence. There is nothing in the mother’s affidavit or any other material provided by the mother that the children were or are afraid of their father. The father consented to orders that any time that he has with the children be monitored by his parents and his parents provided written undertakings to the court to that effect. The father lives at home with his parents.

Both the father and the mother have a previous drug use history. The father provided a drug test in late 1 204 that contained small amounts of cannabis and also of other drugs. The father had been hospitalised and the drug was a pain killer prescribed. He has provided drug tests free of drugs. The mother has not provided any drug tests. There is no evidence that children have in any way been exposed to family violence. The mother reports violence but does not provide that the children were present.

60CC 3. (a)

There is no evidence of the wishes of the children other than the interview with the Family Consultant.

60CC 3 (b)

Noting that the children have had very little time with their father in the past 12 months it is understandable that there would be some reticence on the part of the children when with their father. To relocate to Perth even if the children did return on occasions and spend time with their father the relationship, between them must to a greater extent become fractured.

The father says that the children, while in his care are relaxed and happy with him and with their extended family.

60CC 3 (c)

The mother on two occasions has taken the unilateral step of preventing the children from having time with their father. First in 2014 which precipitated the Contravention Application on then in January 2015 where she unilaterally severed the children's time with their father and in doing so did not provide any suggestions about what arrangements she was offering to secure the relationship between the children and their father.

The father has been excluded from any participation in any decision making process and when he approached the school the to see the children the staff, acting on advice of the mother, refused to speak with the father and ushered the children away from him. That in itself created in the children confusion.
Once the orders were made the father has taken every opportunity to have time with the children. Notwithstanding that he has not had time with the children since the end of January 2015.

60CC 3 (d)

The father has had a long period we here he has his time with the children interfered with by the mother to such an extent that the parties are before a court after the father initiated a contravention application. Such interference with the relationship and then added to that the disturbance of a relocation would in all respects have a deleterious effect on the relationship between the father and his daughters.

60CC 3 (e)

The mother residing in Western Australia would have the effect of reducing both the time and the frequency of the time that the children would be able to have with her father. The effect of such a fractured arrangement is difficult to quantify. Save to say that it would be difficult to argue that such an arrangement would have the effect of strengthening the relationship between the father and the children.

60CC 3 (f)

There is very little evidence from either that the other has any incapacity to provide the necessities of life to the children The mother is in an established relationship and appears to have that well sorted (apart from seeking to move) the father is living with his parents and has in his affidavit provided that he is alcohol and drug free. The paternal Grandparents have an alcohol free home and it appears from the evidence that father is accepting of that. The father’s capacity to properly parent the children relies upon a stable home environment and a drug and alcohol free lifestyle. The Father says in his affidavit that he is both alcohol and drug free and that is supported to some extent by his parents.

60CC 3 (g), 6

The father identifies as being aboriginal. The father is part of large and well respected indigenous community and that is part of the being of the children.

A recent event (the carnival) that the father and the children attended together was an annual event organised by the Community Council. The connection between the father and this community is strong and the relocation to WA by the mother will do nothing to provide that the children are free to enjoy their aboriginal culture.

The act provides that the children have support, opportunity and encouragement to explore their aboriginal culture and to develop a positive appreciation of that culture. There is nothing in the affidavit or the proposal of the mother that would give the Court any confidence that the mother has appreciation of the need to foster the aboriginal culture in her children.

Summary

The jurisdiction of the Court in making parenting orders is provided in Part VII of the Act. The task for the Court is to make orders which, on balance of the probative evidence and the proposals of the parties is in the child’s best interests. The jurisdiction of the Court is directed at children and whilst the Court may permit or refuse a relocation of a child, it does not usually per se make orders which prevent the freedom of movement of an adult. Nevertheless, in many cases the primary parent wishing to relocate will commit to remaining with the child should the relocation be refused.

It is well established that the starting point is the presumption that is the children's best interests is that the parents have joint parental responsibility. There is scant evidence before the court that the children are in any danger in the presence of the father or in the presence of his extended family.

Both parents have admitted to drug use, the court has the competing evidence of the mother and the father about the difficulties between them but what is the most striking is the fact that the mother has unilaterally set off to Western Australia in spite of her consenting to the Court for a regime where the father and the children were to have time together.

The matter arose in mid-2014 where the mother unilaterally determined that it was in the best interests of the children not have timer with their father also in breach of consent orders made previously.

The mothers contempt for the Court as well as her abject failure to ensure that the children have a meaningful relationship with the father and his culture must give some weight to any argument that the mother will simply disregard any order made by any court as and when she feels like it. The current proceedings arose out of a the mother's contempt of the previous orders made.

Schedule three

CASE OUTLINE DOCUMENT BY INDEPENDENT CHILDREN’S LAWYER

NATURE OF PROCEEDINGS

The proceedings involve two children X born (omitted) 2006 (age 9 years and 4 months) and Y born (omitted) 2008 (age 7 years and 4 months) and whether they should be permitted to live with the mother in Western Australia or whether they should be returned to New South Wales. The further significant issue is what time the father should spend with the children and whether such time should be supervised.

SHORT CHRONOLOGY

(omitted) 1972

DOB Father

(omitted) 1980

DOB Mother

(omitted) 2000

Parties cohabit

2004

Parties marriage

(omitted) 2006

DOB child X

(omitted) 2008

DOB child Y

October 2010

Parties separate

13/05/2011

Orders made by consent Federal Magistrates Court Sydney

23/12/2014

Interim Orders made Federal Circuit Court of Australia Wollongong

January 2015

Applicant mother unilaterally relocates to Western Australia

17/03/2015

Parties attend Child Inclusive Conference

ORDERS SOUGHT BY APPLICANT MOTHER

The mother appears to seek Orders inter alia:
i.Sole parental responsibility;
ii.Residence;
iii.That the children be permitted to live with the mother in Western Australia;
iv.The father spend time with the children for 4 hours each alternate day during school holiday periods;
v.Such time to be supervised by the paternal grandparents;
vi.Father be restrained from using any prohibited or non-prescription drugs within 48 hours of spending time with the children;
vii.Mother to pay flight costs;
viii.Telephone communication with the father twice per week on a Wednesday and Sunday at 8:00pm;
ix.Father submit to urinalysis each month under supervision.

ORDERS SOUGHT BY RESPONDENT FATHER

The Respondent father appears to seek the following Orders inter alia:
i.Joint parental responsibility;
ii.Return of the children to NSW;
iii.Spend time with the children each alternate weekend from Friday to Sunday along with half school holidays and other times;
iv.Restraint on the parties from taking non-prescription drugs or alcohol;
v.Other Orders.

COMMENT

The parties attended a Child Inclusive Conference on 17 March 2015 and the Family Consultant has produced a Memorandum to the Court.

PLEADINGS

The Applicant mother appears to rely upon the following documents:

i.Initiating Application filed 13 February 2015;
ii.Affidavit filed 13 February 2015;
iii.Notice of Risk filed 13 February 2015.

The Respondent father appears to rely upon the following documents;

i.Response dated 17 March 2015;
ii.Affidavit sworn 16 March 2015 incorporating previous Affidavit sworn 26 November 2014.

The Independent Children's Lawyer relies upon the Child Inclusive Conference Memorandum to Court dated 17 March 2015 and will tender that document to the Court.

THE APPLICANT MOTHER’S EVIDENCE

Affidavit of Applicant mother sworn and filed 13 February 2015

The Applicant mother was born on (omitted) 1980 and is 34 years of age. She commenced cohabitation with the Respondent father in about (omitted) 2000 and they were married in 2004. There are two children namely X born (omitted) 2006 and Y born (omitted) 2008 (Par 1-3);
The Respondent was a regular user of illicit drugs including cocaine and speed. He was charged with possession of marijuana. His drug use and addiction and volatile behaviour was the main reason for the relationship breaking down (Par 4);
On 25 April 2010 the Respondent father attempted to strangle the mother whilst a passenger in the back seat of a car travelling with two friends. The other backseat passenger released the mother’s neck from the hands of the Respondent. The mother obtained an AVO against the father for a period of 2 years. The father was on drugs and behaving in an erratic manner. The parties separated around September or October 2010. The mother filed an Application in the Court and Final Orders were made by consent on 13 May 2011 providing for the children to live with the mother and spend alternate weekend time with the father as well as time each Wednesday night and other special occasions. The father did not spend any time between February and December 2014 (Par 5-7);
The mother commenced a new relationship with Mr M and they married on (omitted) 2013. He is an (occupation omitted) employed in (employer omitted) as a (occupation omitted). They have one child Z born (omitted) 2013 (Par 8);
From about October 2011 the father generally spent time with the children in accordance with the Consent Orders but from about that time X ceased each Wednesday night. In about April 2012 the father relocated to Sydney to live with his girlfriend Ms K without consulting the mother. The children continued to spend each alternate weekend with the father in Sydney because the mother would travel to Sydney on weekends to spend time with her partner Mr M who was posted to Sydney in the (employer omitted)(Par 9-10);
In about October 2012 the father returned to (omitted) to live after separating. A couple of weeks later the mother was called by DoCS and was informed of an incident where the father had assaulted his partner Ms K and left the children unattended. When questioned, the father refused to provide her with details (Par 11);
After the Respondent father returned from Sydney he was living at (omitted). The father contacted the Federal Police and alleged the children were at risk. The Police attended but advised that no further action would be taken. The father apparently alleged Y had sustained a bruise on her bottom after being hit by Mr M with a wooden spoon. The Police took no action but the father continued to harass and intimidate the mother about his report to the Police (Par 12-13);
In September 2012 the father collected X from the mother’s home on a Wednesday though he had not been previously spending time on a Wednesday for a period of approximately 12 months. X went with him but indicated that she wished to go home. The father got her out of the car near (omitted) threatening her that he would leave forever if she did not stay with him. X told her mother that she was scared and crying. The father phoned the mother that night indicating she could have the “fucking kids” and that he would be going to work in the morning. There were continuing late night calls from the Respondent to the mother and to the maternal grandmother’s home. As a result and because of previous threats the Police applied for an AVO on her behalf. The father telephoned her indicating that he did not care and would let the AVO go through. The Orders were made in October 2012 (Par 14);
In about December 2013 the father informed the mother that he would be permanently relocating to (omitted) in Queensland and that he would visit to see the children in (omitted) approximately twice each year. The Respondent returned to (omitted) after approximately 4 weeks because he was unable to secure work (Par 15);
Upon the father’s return to (omitted) in January 2014 he variously lived with his sister on two occasions and his parents and so far as the mother was aware he was asked to leave on each occasion. The children complained about the father having no food or money so she sent food and money with the children for their last 6 weekend visits with the Respondent. On 5 March 2014 the father indicated he was unable to spend time with the girls due to having no money or accommodation. The paternal grandfather later spoke to the mother and advised that the father could come back home under strict conditions. The mother believed that there was an issue of drugs use between the father and the paternal grandfather who indicated that he believed his son was sleeping in a car as he was no longer welcome at his sister’s place either (Par 17-18);
The mother is concerned about the lack of suitable accommodation by the father and that he is again using illicit drugs and has no income to provide for the children. The Respondent’s urinalysis test results indicate positive to cannabis for all test results provided as well as opiates on one occasion (Par 20);
After mediation in July 2014 the father attended the mother’s home on September 19 but the children hid in the cupboard. The father indicated the mother should have received a letter from the solicitor about contact taking place. The mother did not hand over the children because she was not satisfied as to the father’s suitable accommodation, that he had an income or that he was not taking illicit drugs. The father yelled and screamed at her and reported the matter to the Police (Par 21);
September 22, 2014 the Respondent continually telephoned the mother’s mobile about spending time with the children. She indicated to him that they would not be spending time with him until he had suitable accommodation, was off drugs and was more stable. On 26 September 2014 the father had threatened to attend the mother’s residence so she arranged for the children to be at her mother’s home so that they would not be afraid. The Respondent attended with his father and she informed the Respondent that he would not be seeing the children for reasons advised to him previously. The Respondent became agitated and started pacing back and forth. He did something strange in attempting to get saliva out of his mouth but could not do so. He started yelling and ranting, throwing his hands in the air and swearing at the mother and calling her many derogatory names. The mother’s partner Mr M called the Police but the Respondent left after 20-30 minutes. The Police applied for a further AVO which was obtained on 14 November after the Respondent father failed to attend the Final Hearing. While the Respondent was yelling the mother noticed that he had scabs on his left inner arm. He had lost a huge amount of weight and was barely recognisable having lost at least 20kgs. The mother believed that he had been using and injecting drugs again (Par 23-24);
On Wednesday 8 October 2014 the father attended the children’s school at (omitted). He picked up X at the bubbler and said that he would take her to Queensland. She ran off and told her teacher. She was scared saying that her father had red eyes and smelled bad. X was distressed and emotional over the incident and was taken to the sick bay. The father also approached Y advising her that he would be coming back another day to take her to Queensland. Y was led away by another teacher. The mother spoke to the Principal and then attended the school to speak to X’s teacher who indicated X was crying and shaking when the father attended. The mother also spoke to Y’s teacher and ascertained the father had been attending the school bus lines. The mother was very concerned about the Respondent’s behaviour and about the children’s wellbeing so she arranged for the children to see Dr L a clinical psychologist in (omitted), her Report is attached (Par 25-28);
On 22 November 2014 the Respondent attended the mother’s home with his mother and solicitor. The children hid behind the legs of the mother’s partner Mr M and were scared and were crying. The father left a bag of gifts on the ground for X to collect after he left. On (omitted) 2014, Y’s birthday, the mother did not bring the children to school because she had received a telephone call from the Principal indicating that he had received an email saying that the father and his parents were going to attend the school and that he did not believe it was in the children’s best interests to attend. The father did not spend time with the children from February 2014 until Orders were made in this Court on 23 December 2014 due to the significant fears and concerns for the safety of the children by the mother (Par 29-31);
The mother’s partner has recently been posted to (omitted) in Perth Western Australia in the (employer omitted) as a (occupation omitted). Notice of his posting was received on 29 December 2014. The mother did not advise or discuss the relocation with the father because she believed he would be verbally abusive and also there was a current AVO in place and she was scared of how the Respondent would react. The father was advised by a solicitor’s letter on 23 January 2015 of the mother’s relocation with the children. The mother’s partner commenced his new job on 27 January 2015. The mother is living with her partner and the children at (omitted) about 40minutes drive from Perth in a house provided by the (employer omitted). She understands the posting may be between 12-24 months. They have leased their house in (omitted) so would not be able to return there with all their possessions also being in Western Australia (Par 32-35);
The children have been enrolled in (omitted) Primary School commencing on 2 February 2015 and appear to be settling in well and making friends easily. They have commenced dance lessons and acrobatics two afternoons per week and have been enrolled in netball. On 30 January 2015 the mother received a telephone call from (omitted) advising they were not willing to hold the children’s spot in the event that they were to return. The mother receives $12.50 per week financial support from the Respondent father. Otherwise no financial support is received from the father. The mother works as a (occupation omitted) and has been able to secure 4 days per week work with (employer omitted) in (omitted) working hours that enable her to drop the children off at school and then be at home in the afternoon to collect them (Par 37-39);
The father has been able to purchase a one carat diamond stud earing as a gift and advised that he plans to go overseas to (country omitted) or the (country omitted) at Easter and has been able to pay $6,000.00 repairs for his motor vehicle (Par 40);
On 16 January 2015 when the children spent time with the father he became involved in an incident at a carnival when Y was unable to go on a ride due to her lack of height and the father began swearing at the attendant. Security was called. This all occurred in front of the children. The mother is concerned at the Respondent’s lifestyle including his connection with the (omitted) known for its violent clashes with members of the public and Police. The father posted threatening comments on his Facebook page which are annexed to the Affidavit including comments from his sister and nephew (Par 42-43);
On (omitted) January 2015 the Respondent father posted on Facebook details of a fight in which he appears to have been involved (Par 44);
Mother has always been the primary carer and financial supporter of the children. The father has moved away to Sydney and Queensland without recourse to the mother or the children. It has been necessary to relocate to W.A. because of the close and loving relationship with the mother’s partner Mr M and their brother Z. The mother appreciates that she should have sought the permission of the Court prior to relocating but was scared of the Respondent’s reaction and put the safety of the family first. She will facilitate a relationship between the children and the Respondent provided the children are kept safe and protected from risk and that the time with the Respondent is supervised and limited. She would be prepared to pay for flights to come back to (omitted) in school holidays to spend time with the Respondent so long as such time is supervised by the paternal grandparents. She has purchased a sim card to enable the Respondent to have telephone contact with the children and she proposes twice per week with the Respondent to initiate the call (Par 45-48)

THE RESPONDENT FATHER’S EVIDENCE

Affidavit of father sworn 26 November 2014

Orders were made 13 May 2011 by consent providing for the father to spend specified and regular time with the two children. A copy of such Orders is attached (Par 3);
In February 2014 the father spoke to the mother who advised the children were not available to spend time and she has subsequently refused on each occasion since then, so the father filed a Contravention Application returnable in the Nowra Local Court on 24 October 2014 and subsequently transferred to the Federal Circuit Court of Australia at Wollongong (Par 4-6);
The father refers to the mother's previous Affidavit and says in regard to paragraph 6 that they were both social users of illicit drugs. He denied strangling the mother as referred to in paragraph 7 and says that both parties had been to a social event in Sydney and had obtained cocaine provided by the mother's sister Ms M. He denies he was convicted or charged with any assault of the mother.
As to paragraph 11 he says that he has been prevented from seeing the children by the unilateral decision of the mother. As to paragraph 14 and 15 he says that he gave up spending Wednesday nights with the children because it was disruptive for them. As to paragraph 16 and 17 he said that he was charged with assaulting his partner who appeared as his witness to defend the matter himself but he was still convicted.
As to paragraph 18 he says that he did contact the Federal Police because of bruising to Y's bottom after she had told him that she was hit with a wooden spoon by the mother's partner Mr M. He subsequently told the Police that he just wanted the boyfriend to stop hitting the girls.

As to paragraph 19 he denies that he permanently relocated to (omitted). The girls were in Perth the whole time he was in (omitted). When he saw the girls he noticed that Y had a large scar on the right hand side of her face near her temple. It apparently had required 6 stitches but the mother had failed to advise him of the injury or that she had been taken to Emergency.
As to paragraph 20 he denied he was asked to leave from his sister's home where he stayed for 2 months. He says that he is welcome any time at his sister's home. He says that there is always food in his parents pantry and fridge and denies there was no food for the girls and that they were left hungry. He text messaged the mother on 10 April 2014 requesting phone contact with the children but there was no response.
As to paragraph 21 and 22 the father sent a text message about seeing the girls on a weekend but the mother refused.
The father attaches to his Affidavit results of drug tests being annexures "B" and "C" which show positive for cannabis and opiates.
As to paragraphs 24 and 25 the father says the mediation failed because the mother refused to continue and terminated the meeting.
As to paragraphs 26 and 27 the father says that the children are not afraid of him and that any fears may have been at the direction of the mother.
As to paragraphs 28 and 29 the father denies using offensive language. He does not know what the mother was talking about with respect to trying to spit. There are no scabs on his arm or any other part of his body. There are and never have been any needle marks on his arms. He admits that he has lost weight over the past several months being some 6kgs. The father says that he has provided clear drug tests but the mother still refuses to allow him to see the children.
As to paragraphs 31 to 34 the father says that he did attend the school and spoke to X but denies that he told her that he was going to take her away.
As to paragraphs 35 and 36 he says that he has a safe and secure environment with his parents. He is drug and alcohol free and there is no valid reason for the mother preventing the children from spending time with him.
The father has been attempting to arrange to spend time with his daughters and sets out the terms in a text message sent on 19 April 2014 advising the mother that he does not drink, use or sell drugs, that the mother and her partner have been arguing a lot and that the mother has been drinking heavily of late. He sets out a text message in reply from the mother indicating that she is unwilling to send the girls when the father does not have a permanent residence or money to provide whilst in his care. She said as a result of past incidences she finds the father threatening and she is not prepared to jeopardise her own safety or that of the children. The father sets out further text messages forwarded to the mother and apologises to her if he had offended her (Par 8);
The father says that he is aboriginal and lives with his parents who are also aboriginal. His mother is a devout and practising Christian lady held in high regard in the community (Par 9). The father says that he has provided drug test demonstrating that he is free of drugs (Par 10).

The Court must consider the matters set out in Section 60CC being the primary considerations and the additional considerations referred to in Section 60CC(3) to determine what is in the children’s best interest.

MEANINGFUL RELATIONSHIP

i.Section 60CC(2)(a) requires the Court to consider the benefit to the children of having a meaningful relationship with both of their parents. The mother has been the primary carer of both children and she has a meaningful relationship with both children. The relationship between the father and the children is less certain and requires further investigation. The father says in his most recent Affidavit that the children were relaxed and happy with him and his parents when he spent time with them after further Interim Orders were made 23 December 2014.
ii.The children reported to the Family Consultant that they had a close and loving relationship with their mother and with Mr M. Their relationship with their father was more distant and they each expressed ambivalence about him. X expressed a sense of feeling "unsafe" while with her father but she was unclear about any reasons why. The mother in her Affidavit (Par 45-48) indicates that she will facilitate a relationship between the children and their father provided the children are kept safe and protected from risk and that the time with the father is supervised and limited.

PROTECTING THE CHILDREN FROM HARM

i.Section 60CC(2)(b) focuses on the need to protect the children from harm. As stated above the father says that the children have been relaxed and happy in his company. The mother expresses considerable concerns about the children being in the company of the father because of alleged past domestic violence, anger issues and past and continuing drug use of the father. Though she is prepared to facilitate a relationship between the children and the father she requires any time that he spends with them to be supervised and limited.
ii.The father's own evidence exemplifies his continuing use of marijuana. The father appears to attach no significance to his marijuana usage and the effect such usage could have with respect to his care of the children. The mother indicated to the Family Consultant that she had previously used speed and cannabis though she has rarely used cannabis since age 15. The father referred in the CIC Memorandum to completing 2 drug tests in January and February 2015 but the results of such drug tests have not been provided to the ICL.

CHILDREN’S VIEWS

i.There is no objective evidence of the views of the children except their discussions with the Family Consultant which are previously referred to herein.
ii.The mother refers to incidents in her Affidavit material when the father attended the children's school and the mother's home causing the children upset and distress.

THE NATURE OF RELATIONSHIPS

i.Section 60CC(3)(b) requires the Court to consider the nature of the children’s relationships with their parents and other relevant persons. The children appear to have a very close relationship with their mother. She says in her Affidavit that part of the reason for her relocation to Western Australia was because of the close and loving relationship the children have with her partner Mr M and their brother Z born (omitted) 2014.
ii.As set out above the father refers to the children being relaxed and happy in his company and in the company of his parents, the paternal grandparents.

LIKELY EFFECT OF CHANGE

i.Section 60CC(3)(d) requires the Court to consider the likely effect of changes in the children’s circumstances. The children are still transitioning through a significant change in their lives being the move from NSW to WA and all that accompanies such move.
ii.There is no objective evidence as to the likely effects of such change though the mother sets out in her Affidavit details of the living arrangements of the children, their schooling and their extracurricular activities.

ISSUES OF PRACTICAL DIFFICULTY AND EXPENSE

i.In the event that the mother remains in WA with the children the father would necessarily not be able to spend significant and substantial time with the children.
ii.The mother would be prepared to pay for flights to bring the children back to (omitted) during school holidays to spend some time with the Respondent father so long as such time is supervised by the paternal grandparents. She has purchased a sim card to enable the father to have telephone contact with the children and she proposes twice per week with the father to initiate the call.

PARENTAL CAPACITY

i.The mother appears to have the parental capacity to properly care for the children who are safe and secure in her care. The ICL has significant concerns about the parental capacity of the father. Documents produced under Section 69ZW by the Police indicate that the father is known by the Police for having a drug history and has matters of violence on his record.
ii.The father appears to take the very naïve approach that the continuing use of marijuana does not constitute drug use. He indicates in paragraphs 15 and 16 of his most recent Affidavit that he does not use illicit drugs and that he maintains a sober and drug free lifestyle. Those assertions are not supported by the urinalysis test results from October and November, 2014 which he annexes to his own Affidavit. The father has a history of violent behaviour and drug use. It cannot be said with any confidence that he has the capacity to properly parent his children.

ATTITUDES TO THE CHILDREN AND TO THE RESPONSIBILITIES OF PARENTHOOD

i.The submissions set out previously herein are repeated.

FAMILY VIOLENCE

i.Part of the Objects of the Act are to protect the children from "physical or psychological harm, from being subject to or exposing to abuse, neglect or family violence." It is clear that the father has been involved in significant violence no doubt sometimes in front of the children. Significant further investigation needs to be completed prior to any Orders being made about the father spending unsupervised time with the children.

BEST INTERESTS

i.It is submitted that it is normally in the best interests of the children to spend significant and substantial time with both parents on a regular basis. It is difficult for the Court to make Orders with any certainty at this stage. It is proposed by the ICL that the children continue to live with the mother and spend time with the father so long as such time is supervised by the paternal grandparents.

The Objects of the Act are set out in Section 60B and are extremely important in this matter in particular in attempting to protect the children from harm. Investigations need to be carried out about the impact on the children of the violence of the father and the inability particularly of the father, to demonstrate appropriate parental capacity as a result of continuing drug use, specifically marijuana.
The Court is required to give a full investigation of the competing Applications before the Court but that can only occur at a Final Hearing. The Court necessarily can only make a shortened enquiry based on competing and untested allegations and what objective evidence might be available. The parties have not provided any supporting Affidavits by other deponents. In the case of Goode the Full Court required consideration of sections 60CC, 61D and 65DAA in dealing with an Interim Application. The Court is required to consider the competing proposals of both of the parties and make what findings of fact it can, based on the evidence supporting such proposals.
SUBMISSION

The Court noted on 30 January 2015 that "Since the matter was listed for Interim Hearing by way of Order made 23 December 2014, the mother has unilaterally relocated to Western Australia with the children."
The mother acknowledges in her Affidavit that she should have sought the permission of the Court prior to relocating but was scared of the Respondent's reaction and put the safety of the family first.
The mother now makes application that she be permitted to live with the children in Western Australia when she has already taken that step. On the basis that they continue doing so she says that she will facilitate a relationship between the children and their father but that any time spent with him should be supervised and limited with such supervision being by the paternal grandparents. She is prepared to pay for the cost of flights to return to (omitted) during the school holiday periods. She has also purchased a sim card to enable the father to have telephone contact with the children twice each week. The mother seeks to have her very recent Application for relocation dealt with by the Court on an interim basis. Relocation cases themselves usually involve significant complexities. The "overarching issue" is for the Court to ensure that any parenting order is in the best interests of the children and the mother must demonstrate that her new arrangements are so. On the one hand, the mother uses as part of her excuse for relocating to WA her fear of the father but on the other hand is prepared to facilitate a relationship between the father and the children. It could be said, that her reasons for the move are personal only and to do with her relationship with her husband. That particular matter is part of the many issues which would normally have been considered by the Court at Final Hearing of her Application to relocate. There is no evidence before the Court about any notice her husband may have received about the possibility of any such move to some other place in Australia. Case Law such as U v U and AMS v AIF consider the question of how the right to freedom of movement ought to be treated in a relocation case and against the background of the paramountcy principle.
Attached to the Orders dated 23 December 2014 is a document setting out the obligations of the parties affected by such Orders and includes information pursuant to Sections 62B and 65DA(3). The document indicates "that each person affected by the Order must follow it". It further sets out the legal obligations of the parties in particular that "you must do everything a parenting order says" and that a party must take "all reasonable steps to ensure that the Order is put into effect." It is suggested "that the significance of non-compliance lies in maintaining the proper working of the Court system so that Court Orders are obeyed. If such orders are defied, the system of dispute resolution by litigation will cease to function." (Australian Master Family Law Guide). The mother has clearly defied the Orders made by the Court and she has done so without notice to the Court or to the other party. The mother, it is submitted, should return the children to NSW and comply with the Orders unless she can establish to the satisfaction of the Court that such a return would have a very deleterious effect on the children and that it is not in the best interests of the children. It is noted as a matter of interest that the posting to Western Australia is for a period of between 12 and 24 months. It is submitted that the Court would not normally make Orders allowing the children to remain in WA in the light of the mother’s breach of the Orders made.
In the event that the mother is ordered to return with the children to NSW then it is appropriate that the father spend supervised time with the children as previously ordered until a full investigation of the matter can be completed. The father is naïve in his presentation to the Court that he is sober and drug free when at the same time he appears to acknowledge his continuing use of marijuana. He provides absolutely no evidence to the Court as to such continuing use and its level. Parents using such drugs are often simply unavailable for the children and that possible circumstance is compounded by the father's violent history.
The memorandum from the Family Consultant essentially refers to polar allegations made by the respective parents against the other. On an interim basis it is extremely difficult for the Court to make any finding with certainty and it is for the mother to persuade the Court that there are "possibly negative consequences to a proposal that includes her returning to a similar area as him to live." In addition to the allegations of the mother against the father an objective change in circumstances can be referenced by the father's criminal and quasi criminal history since the previous Orders were made in 2011 including his conviction for assaulting his girlfriend and further apprehended violence orders made by for protection of the mother. The most significant hurdle for the mother appears to be her defiance of the Orders made. In the event that the Court is not persuaded by the mother then the ICL seeks the following Orders:

ORDERS SOUGHT

That the mother return the children X born (omitted) 2006 and Y born (omitted) 2008 to the (omitted) area NSW within 21 days;
That the said children live with the mother;
That the father and the mother are to undertake (by provision of urine screen in accordance with the Australian/NZ Standard 4308:2001) urinalysis for drug screening within twenty four (24) hours of receiving a request for such screening from the Independent Children's’ Lawyer and are to provide copies of the results of the testing to the Independent Children's Lawyer within forty eight (48) hours of receipt of same.
The Applicant and Respondent be and are hereby restrained by her/himself, her/his servants or agents from:

i.Speaking or permitting any other persons to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the children;
ii.Discuss any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.

The Orders made 13 May 2011 be suspended.
The father be restrained by injunction from approaching and entering the children's school.
The father is to spend time with the children as follows:

i.Once every week for a period of 4 hours as agreed between the parties, but failing which, each Saturday from 10 am to 2 pm commencing the Saturday following the return of the children to the (omitted) area.
ii.Changeover for all of the father's time with the children is to be facilitated by one or both of the paternal grandparents.

By 5:00pm today, the paternal grandparents are to provide a written undertaking to the Court and to the mother's solicitor that provides the following:

i.That they will personally (either individually or together) supervise the father's time with the children; and
ii.That they will forthwith terminate the father's time with the children if any of the following occurs:
1.The father denigrates the mother and/or discusses these proceedings with the children;
2.The father is under the influence of illicit drugs or alcohol;
3.The children become inconsolably distressed;
iii.That they will facilitate changeovers between the parents.

For the purposes of facilitating the father's time with the children, changeover is to occur at (omitted) Shopping Centre.

Dated this day of 2015

Peter Williamson – Independent Children’s Lawyer.

[2015] FCCA 1751

4 June 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

(omitted) 1972	DOB Father
(omitted) 1980	DOB Mother
(omitted) 2000	Parties cohabit
2004	Parties marriage
(omitted) 2006	DOB child X
(omitted) 2008	DOB child Y
October 2010	Parties separate
13/05/2011	Orders made by consent Federal Magistrates Court Sydney
23/12/2014	Interim Orders made Federal Circuit Court of Australia Wollongong
January 2015	Applicant mother unilaterally relocates to Western Australia
17/03/2015	Parties attend Child Inclusive Conference