CROSBY & CROSBY

FEDERAL CIRCUIT COURT OF AUSTRALIA

CROSBY & CROSBY

[2019] FCCA 138

Catchwords:
FAMILY LAW – Interim parenting proceedings – children aged 7 and 5 – high conflict between the parties – presumption of equal shared parental responsibility – family violence – whether appropriate to apply presumption – consideration of circumstances of emergency – no consensual status quo created at separation – determination of where the children will primarily live and go to school – nature of an interim hearing – weight to be attached to historical complaints of the parties in interim proceedings – self-help – effect of changed circumstances on children – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 68B

Cases cited:

Zahawi & Rayne [2016] FamCAFC 90

Goode & Goode (2006) FLC 92-286

C & S [1998] FamCA 66

Morgan & Miles (2007) FamCA 1230

Applicant:

MS CROSBY

Respondent:

MR CROSBY

File Number:

ADC 4257 of 2018

Judgment of:

Judge Brown

Hearing date:

21 January 2019

Date of Last Submission:

21 January 2019

Delivered at:

Adelaide

Delivered on:

25 January 2019

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Ms Kari

Solicitors for the Respondent:

Tindall Gask Bentley

ORDERS

UNTIL FURTHER OR OTHER ORDER:

The children [X] born on … 2011 and [Y] born … 2013 “hereinafter referred to as the children” live with the mother.
The father spend time with the children each weekend commencing 24 January 2018 from 5:00pm on each Friday until 5.00 pm the following Sunday.
The parties have joint parental responsibility for making decisions concerning the long term care, welfare and development of the children.
The parties exchange all necessary information concerning the children’s day to day needs, including details of their medical, educational, dietary and extramural needs in writing by means of a communication book to be exchanged between them at each handover of the children between them.
The mother is authorised by this order to enrol the children at School A for the 2019 academic year.
Pursuant to Section 62G(2) of the Family Law Act (1975) the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 23 April 2019.
The family assessment to deal with the following matters:
(a)To include interviews with the parties, the child and relevant family members;
(b)Observed interaction between the child and the parties;
(c)Any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(d)The matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;
(e)Any other matters that the family assessor considers important to the welfare or best interests of the said child.
The solicitors for the father forward all documents filed with the Court on behalf of their client to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.
The mother forward all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:
(a)A Children’s Court;
(b)A child protection authority;
(c)A State or Territory legal aid authority; and
(d)A convener of any legal dispute resolution conference
NOTING:
A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
Neither party denigrate the other in the presence or hearing of the said child / children or permit any other person to denigrate the other party in the presence or hearing of the said child / children.
Each party is restrained and an injunction issues restraining each of them discussing the proceedings with the children.
Each party is authorised by this order to attend at the children’s school for all events that are routinely attended by parents, including sports days and parent/teacher interviews.
Each party is authorised by this order to obtain information from any medical practitioner, psychologist or allied health professional attended by either of the children from time to time.
This matter be listed for final hearing before Judge Brown on 20, 21, & 22 November 2019 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.
Further consideration of this matter is adjourned to 21 May 2019 at 9:30am for directions.

BY CONSENT IT IS ORDERED

That regardless of the regular school term, live with and time spending arrangements, the children live with each of the parties as follows:
(a)With the mother on Mother’s Day from 10:00am until 4:00pm;
(b)With the father on Father’s Day from 10:00am until 4:00pm;
(c)With each of the parties for one half of the school holidays at the end of Terms 1, 2 & 3 at such times as agreed between the parties with the time at the end of Term 1, 2019 (which includes a sharing of Easter) to be as follows:-
(i)With the father from the conclusion of school on Friday 12 April 2019 until 5:00pm on Saturday 20 April 2019;
(ii)With the mother from 5:00pm on Saturday 20 April 2019 until the commencement of school on 29 April 2019.
That handover of the children take place at ‘Venue B’ at Suburb C with the father to be at liberty to have an agent attend on his behalf in the event that he is unable to attend in person SAVE & EXCEPT that handover on 20 April 2019 shall be at the Suburb D BP Petrol Station.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4257 of 2018

MS CROSBY

Applicant

And

MR CROSBY

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment concern interim or provisional arrangements for the care of two children, whose family is in a state of crisis. In these circumstances, the court must make the best decision it can, whilst being fully aware that no outcome, in the case, can be satisfactory for the individuals concerned and the material, on which it must be based, at this stage, is both limited and disputed.
Ms Crosby “the mother” and [X] “the father” are the parents of [X] born … 2011 and [Y] born … 2013. School recommences for the academic year, in 2019, in a few days’ time.
Given the parties cannot agree, the court must decide which school the children will attend for the forthcoming year. In turn, that decision will largely determine with whom of their parents [X] and [Y] will predominantly live, until there can be a more thorough investigation of the evidence in the case, at a final hearing which, due to the pressures of the court’s business, will necessarily be fixed at some time in the future.
These current urgent decisions, about the school and living arrangements for the children, must be made against a background of controversy and disputation between the parties. They do not agree on what have been the prior care arrangements for [X] and [Y] and each asserts that the other has acted both high-handedly and unilaterally in respect of arrangements for the care of the children, since they separated, in emotionally charged circumstances in mid-2018.
Necessarily, each party asserts that the other is a poor and compromised parent. As a consequence of all these issues, at present, there is no obvious solution to this familial crisis and whatever is decided has the potential to have seriously adverse consequences for [X] and [Y].

Background

The parties are each in their mid-forties. They met in 1997. Besides [X] and [Y], they have one other child. She is [Z] born … 2001.
Given her age, the parties agree that [Z] should decide where she is to live. [Z] has elected to remain living with her father, in the parties’ former family home located at Town E.
[Z] is starting Year 12 shortly. She attends School F in Town E, which is nearby. She also has a part-time job, in a Employer in Town E. It makes sense that she should remain living in the Town E area. This will enable her to maintain the framework of activities, which have hitherto supported her life. The father argues the same considerations should apply to [X] and [Y].
The father works at the Employer, which are situated to the north east of Town E. He works to a roster comprised of four days night shifts (6:00pm-6:00am); four days off; and four days day shift (6:00am-6:00pm). In practical terms, this means that he does not necessarily have weekends off coinciding with the children’s school regime.
The mother is critical that necessarily care arrangements for [X] and [Y] will fall onto [Z], whilst the father is at work, if they live with him at the Town E home. The mother asserts that this is inappropriate, given [Z] has her own life and study responsibilities and is also a young person, who should not be placed in such a position of pseudo-parental responsibility for her siblings.
Since late 2017, the mother has been employed as a customer service officer with premises in Suburb G, an inner suburb of Adelaide. It is approximately 53 kilometres between Town E and Suburb G.
Prior to the parties’ separation, which both agree occurred on 16 June 2018, when the mother announced the relationship was over, [X] attended School H, near to Town E, whilst [Y] attended the pre-school, which is nearby.
It is the father’s position that, prior to separation, he was closely involved in providing care for [X] and [Y] and issues relating to stability and continuity of care dictate that [X] should commence the 2019 school year at School H and [Y] should follow him to this school, as the parties had previously agreed, prior to their separation.
The father disputes the mother’s assertion that he is reliant on [Z] to provide care for [X] and [Y]. He concedes that he has to earn his income but asserts that he has the support of his parents, who also live in the Town E area.
It is the father’s evidence, which seems incontrovertible, that he did not expect the separation. On 16 June 2018, the mother’s announcement to him, precipitated an emotional maelstrom, during which the mother asserts that the father directed her to leave the Town E home. As she had nowhere to go, she moved temporarily to a friend’s home in Adelaide.
In these circumstances, she was not able to leave with [X] or [Y]. It is her case, that prior to separation, she was the parent who provided the vast majority of care for the children. She has many criticisms of the father asserting that he is an alcoholic and has suffered significant mental health issues in the past. Significantly, in the context of this case, she alleges that he has been highly controlling of her relationship with [X] and [Y].
It is also common ground that the mother has re-partnered. Her current partner is Mr J, who is a co-worker with her at the Employer. The parties’ dispute when this relationship began – the father asserting that it occurred secretly, prior to the parties’ separation; the mother asserting that it began shortly after the parties separated.
During the course of the interim hearing, I explained to the parties that matrimonial fault plays no part in the determination of care arrangements for children following separation. However, I would be naïve to think anything other than that there is a significant emotional component to these difficult and controversial proceedings.
Against this background, it is the mother’s case that the father placed obstacles in the way of her spending time with the children and her on going provision of parental care for them, which hitherto had been her predominant role in family.
She also asserts that the father made a number of serious threats against Mr J, which she took extremely seriously because of her past experience of the father and her concern that he might have access to firearms, given the nature of the threats in question, namely he would blow Mr J’s head off.
The matters have been reported to the police and are the subject of a domestic violence order. As such, the mother asserts that the father has occasioned acts of coercive and controlling family violence against her, which disqualify him from being [X] and [Y]’s primary carer at this stage.
The father denies making threats of violence against Mr J and is contesting the temporary intervention order, which was placed against him, at the instigation of police. He is also critical of the mother for behaving in an emotionally insensitive manner through her early introduction of [X] and [Y] to Mr J, when they, like he himself, were still adjusting to the end of the parties’ relationship.
More significantly, the father is highly critical of the mother for acting unilaterally, in respect of care arrangements for [X] and [Y], in early October of 2018. On this occasion, following arrangements having been made for her to spend time with the children, over the weekend, she unilaterally retained them and enrolled [X], without the father’s consent, at School A, near to where she is employed.
From October 2018 onwards, the children have lived with the mother and Mr J, at Mr J’s house in Suburb K. Besides the mother, the children share the accommodation with Mr J’s young son, [W]. It is a two-bedroom apartment. It is the father’s position that this is unsuitable accommodation for the children, as three of them have to share a bedroom.
The mother agrees. The relevant lease will expire in March of 2019 and thereafter she and Mr J are looking for a four bedroom house to rent. Her preference would be to lease a house at Suburb L. Suburb L is still a significant distance from Town E but proximate to School A Primary School.
The mother is resistant to looking for accommodation in the Town E area for two main reasons. Firstly, she asserts that she and Mr J will be at risk of suffering intimidation, from the father and members of his family; secondly, it would not be logistically feasible for her to be able to deliver the children to School H for school, whilst she is working in the inner suburban area of Adelaide.
It is the mother’s case that [X] has settled well into School A Primary School and is looking forward to starting Year 2 at the school. She also asserts that [Y] has done at well at the Suburb K Early Learning Centre and it is appropriate for her to begin at School A Primary School shortly. The mother has provided end of year assessments for each child, which support her view.
The father contends little weight should be attached to the reports and it is likely he could have got similar reports from School H Primary School and the Pre-School. He further contends that the mother is unwilling to move back to Town E, for tactical reasons, related to the advancement of her case.
In all these circumstances, the mother asserts that it would be disruptive for the children to be returned to live in the former family home at Town E, particularly given the father’s extensive work commitments. It is her case that, as she has been the children’s primary carer, for the vast majority of their lives to date, it will be more settled for [X] and [Y], if they remain in her care and this dictates that they should attend a primary school near to where she chooses to live.
This awful muddle, precipitated by the trauma of the parties’ separation, led to the mother commencing these proceedings on 12 October 2018. The father accuses the mother of duplicity in this regard, asserting that she chose to institute the proceedings only after she had exercised self-help in regards to the children’s care and she has thereafter sought to obtain the court’s post event approval of her unilateral action. He asserts that there are powerful public policy considerations applicable, which should lead to the court not easily approving the self-help of parents, particularly the mother’s actions in this matter.
The father responded to the application shortly thereafter and the case was allocated a first directions hearing on 14 November 2018. Thereafter, the parties were able to agree on some ad hoc arrangements, which saw the children remaining at School A Primary School for the remainder of the 2018 year and spending regular weekends, when he was not at work, with the father.
Similar arrangements were made in respect of the end of year holiday and Christmas, so that the children spent relatively equal periods of time, with each of their parents. These ad hoc arrangements cannot continue and the court needs to make a decision, as the parties themselves are hopelessly deadlocked.
The parties have been able to agree some matters, in the short term. These can be easily expressed;
·The children spend time, with each of their parents, on the special occasions of Mother’s Day and Father’s Day, as appropriate;
·The children spend half of each short school holiday, with each of their parents;
·The children be exchanged at Venue B at Suburb C, which is half way between inner Adelaide and Town E;
·As the parties are in dispute about the division of matrimonial property, they attend a financial mediation conference.
These agreements are posited on the basis that the parties will continue to live at locations separated by sufficient distance to render an equal time care regime impracticable for the children’s care. In these circumstances, each party proposes that the other should spend each weekend with the children concerned, during term time, with handover at Venue B. As indicated at the outset, a decision needs to be made about these issues prior to the start of the school year in 2019.
Given this brief introduction, it should be clear to all concerned that there is no outcome achievable, which will not leave one of the parties feeling hard done by and aggrieved. Necessarily, one party will feel that the court has rewarded the poor behaviour of the other parent in the aftermath of their traumatic separation.
It is not the function of the court to award the children to the parent it considers to be the most worthy. In addition, I must be careful to avoid inherent bias regarding gender suitability to provide care for young children. Rather, my obligation is to fashion the outcome, which is the one I consider most suitable to serve the best interests of [X] and [Y].
As the Full Court of the Family Court recently remarked, the simple fact that a Judge must determine what is in a child’s best interests is axiomatically not in that child’s best interests. Rather,
“… what is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests.”[1]

The legal principles applicable

[1] See Zahawi & Rayne [2016] FamCAFC 90

The nature of an interim hearing

Interim hearings very often arise against a background of serious family crisis and controversy. Obviously this is the situation in the present matter. Given the nature of the particular crisis involved, the court may be required to make any necessary determination expeditiously.
The need for such expedition dictates that the hearing concerned should be truncated. As a consequence, such a shortened hearing does not allow any extensive examination of the relevant evidence, particularly through a process of cross-examination.
Given the nature of the hearing, the various factual issues in dispute, between the parties, cannot be resolved in the context of these interim proceedings. In addition, at the interim hearing stage it is rarely the case that there has been sufficient time for any independent and expert evidence to be prepared, evaluating the case from the perspective of any children concerned, particularly in the context of the nature of their relationship with each of their parents and what is their preferred outcome in the case, if any and what factors are influencing such views.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[2]
[2] See Goode & Goode (2006) FLC 92-286 at 80,901 [68]
Accordingly, at the interim stage, the court is directed to look to less contentious matters, such as any facts which are either agreed or obvious and issues which are not in dispute, particularly prior care arrangements and the current circumstances of the parties and any children concerned.
There are many contentious factual issues in dispute between the parties, which can be summarised as follows:
·Primary care of the children prior to separation;
·Issues surrounding the parties’ separation in June of 2018 and the mother’s situation then;
·What happened on 7 October 2018, when the mother assumed care of the children;
·Issues to do with the mental health of each of the parties;
·The father’s level of alcohol consumption.
In this case, although there has been insufficient time to prepare a family assessment report, the parties did attend upon a family consultant pursuant to the provisions of section 11F of the Family Law Act 1975, which authorises the court to seek advice for a family consultant.
The family consultant concerned was not able to provide definitive advice regarding an appropriate interim outcome in the case. She reported that the issues between the parties concerned were complex and as such the matter would likely benefit from an early family report being undertaken. I agree with both of these assessments.
In respect of issues currently confronting the children, the family consultant reported as follows:
“At separation, the mother left the children with the father, and commenced seeing them on weekends.
The children were allegedly introduced to the man who is in the process of becoming a stepfather figure before they had had any opportunity to process and come to terms with the separation. That relationship is new and as yet untested by time.
The children have allegedly been exposed to post-separation tension and conflict between their parents.
The mother retained the children in October 2018 and made a unilateral decision to enrol them at new educational facilities near her new partner’s unit, against the father’s wishes. It is concerning that the children have been exposed to such a high level of disruption in the past 7 months. A change of school when the children were dealing with the emotional and practical aftermath of such huge changes to their family structure would not usually be recommended. Children spend a substantial portion of their week at school, and at times of turmoil a stable school life can provide continuity of routine, environment, education and relationships.
The parties were of the view that it would be determined at the next hearing whether the children should continue their education at the school and kindergarten near the father or the school and kindergarten near the mother. Given the distance the mother has moved from the family home that determination will impact where the children spend the majority of their time. Both parents presented as caring about the children but as somewhat distracted by the adult matters.”

How the court determines a child’s best interests

At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. They are contained in Part VII of the Family Law Act 1975 “the Act”.
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [see the Act at section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
One of the difficulties currently confronting the court is that there is significant controversy regarding the current nature of [X] and [Y]’s relationship with their grandparents, which cannot be resolved in the context of these proceedings.
Parental responsibility
The legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.

How the court applies these principles in the context of an interim hearing

The legislative pathway, to be followed by the court, was delineated by the Full Court in Goode & Goode[3] can be summarised as follows:
[3] See Goode & Goode [2006] FLC 92-286
·Bearing in mind the truncated nature of an interim hearing, which necessarily precludes the ready finding of facts, the court should consider any relevant section 60CC matter it deems relevant and make what findings it can;
·Thereafter, decide whether the presumption in section 61DA should be applied or, if it is rebutted because;
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.

Family violence

Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
Family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.

Relocation Cases

Given the structure of Part VII of the Family Law Act, particularly in matters where the presumption of equal shared parental responsibility applies, cases involving one parent wishing to move a major distance away from the other parent concerned raise significant issues for the court and the parties concerned. Such cases throw up competing principles, which are difficult to reconcile.
On the one hand, one of the purposes of the Family Law legislation is to provide former partners with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children, in the now changed circumstances following the end of the marital or de facto relationship between them. There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned chose not to live together. As such, it has been said that relocation cases need careful analysis.[4]
[4] See C & S [1998] FamCA 66
The Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.
Relocation has implications for the quality and intimacy of the parental relationship a child has with the absent parent. These concerns are particularly pressing in respect of young or immature children. In this particular case, I bear in mind what was said by Boland J in Morgan & Miles.[5] Her Honour confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“…It [is] highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases”.
[5] Morgan & Miles (2007) FamCA 1230

Discussion

The father’s position is that, on separation, the parties agreed that [X] and [Y] would continue to live at Town E with him. In his affidavit material, he asserted that the mother suffers from some form of obsessive compulsive disorder, which prevents her from caring adequately for the children.
The mother concedes that she was diagnosed with post-traumatic stress disorder and mild obsessive compulsive disorder, in March of 2002. However, this was precipitated as a consequence of a stillborn child. It is her position that her condition was successfully treated and has not reoccurred. I do not think this is a significant issue precluding the mother’s care of the children.
For her part, the mother asserts that the father has a lengthy history of significant health issues. These began in 2008, when he was diagnosed with a mycobacterial infection as a consequence of his employment as a health care worker. This led him to suffering a number of debilitating physical and psychological symptoms, necessitating surgery and precipitating depression. Large welts had to be excised from his body. In these circumstances, it is hardly surprising that he became depressed.
In these circumstances, the mother asserts that she left employment, in November 2008, to nurse the father. She further alleges that when he became depressed, he suffered severe mood swings and began to drink excessively.
It is the wife’s case that she had some part-time work between August 2010 and September 2011 but thereafter remained essentially a stay at home parent, until she obtained casual work in late 2017.
It is the wife’s case that following [X]’s birth, she was the main carer for him and [Y], after she was born, because the father was ill. The father asserts that he was involved in the care of all three children, including [Z], because the mother was either working or unable to provide care because she was out socialising.
In support of his position, the father points to the fact that the mother has not made any specific criticisms of his parenting of the children post-separation and the fact that [Z] has elected to live with him. In these circumstances, he contends that there is no substance to the mother’s assertion that he is a compromised parent or that he has been previously involved in providing satisfactory care to [X] and [Y].
It is the father’s position that the mother has unilaterally disrupted the agreed status quo following the parties’ separation, which has been destabilising for them, removing them from the familiar environment of their family home and the love of their sister [Z], who has currently decided not to have a relationship with her mother.
He asserts that the fact [Z] has made this election supports his assertion that the mother is a difficult person to get on with because she loses her temper easily. On his case, he is the more temperamentally suited parent to care for the children.
It is also his case that the mother has demonstrated an extremely poor level of insight into the responsibilities of being a parent, by introducing [X] and [Y] insensitively to Mr J and then expecting the children to share a bedroom, with [W], in the small townhouse rented by Mr J, whilst at the same time, she has disrupted [X]’s friendship group at School H Primary School.
The father’s proposals for the children’s care to return them to the previous status quo are set out in his affidavit material as follows:
“Since separation I have had the support of various family members to care for the children. As deposed above [Z] assists to a degree together with my parents, Mr M and Ms N.
When I am working day shifts I ensure that the children’s bags, lunches and uniforms are ready before they get up which is generally around 7.30am. [Z] will then assist in getting them to have their breakfast and put on their school uniforms before my mother arrives at 8:00am to take the children to school. My mother will assist in the afternoon to collect the children from school before I return home and prepare the evening meal, assist the children with their homework and activities before they are off to bed.
When I have night shifts the children eat dinner earlier. I will prepare their meals and have them in their pyjamas and bathed before I leave for work. [Z] will then assist in putting the children to bed and by the time they wake the next morning I am home. On some occasions they will wake when I arrive.”[6]
[6] See father’s affidavit filed 19 October 2018 at [62]-[64]
In her affidavit material, the mother has detailed allegations of poor and violent behaviour occasioned against her by the father from 2005 onwards. There is no independent evidence in support of these allegations, many of which involved alcohol. As previously indicated, the father has his own criticisms of the mother, in terms of his allegations that she prioritised her social life over the care of the children.

It seems clear from the mother’s evidence that the parties had a turbulent relationship, which was marked by periods of separation, including an earlier settlement of property issues and incidents of great turmoil, including the loss of a child and the father’s significant and debilitating illness.
Notwithstanding these issues, the parties reconciled their relationship on several occasions and elected to marry in … 2012. I must be careful, in the context of these interim proceedings, to avoid putting excessive weight on the historical complaints of the parties, which have re-emerged in the context of their current difficult separation, but did not prevent earlier reconciliations.
The mother has another child, from an earlier relationship. She is Ms O, born … 1995. She lives in Country P and was recently married there herself. Both parties wanted to go to Country P for the celebration, which is indicative of the closeness of the family.
It is the mother’s case that the father commenced working at Employer in 2017. Prior to that she asserts that, following his recovery from illness, he worked in a family business, which ultimately proved to be unsuccessful. She asserts that her situation following the parties’ marriage, in 2012, can be summarised as follows:
“I had 4 children at home and was a stay-at-home mum. The Respondent was working 6 days a week, 12 to 14 hours a day. I had limited help from him at home so our marriage gradually started to break down again.”[7]
[7] See mother’s affidavit filed 26 October 2018 at [31]
It was against this background that the mother obtained work, initially on a part-time basis, at the Employer, in late 2017. Currently, she works a five day week, Monday to Friday, from 9:00am until 3:00pm. It is her position that she has a flexible workplace and would be able to drop off and collect the children at school, provided it is reasonably close to her place of business.
It is the mother’s position that, in addition to her fear of the father, it would be extremely difficult for her to return to live in the Town E area because she would lose her current position. She further asserts that there is limited employment in the Town E area and it would be extremely difficult for her to support herself financially. Her own family live far away from Town E, and, in these circumstances, she asserts that she would have “no protection from the respondent or his family”.[8] She describes Town E as a small town.
[8] Ibid [66]
In this context, the mother alleges that the father and members of his family have made threats against her in the past. In addition, as previously indicated, she asserts that immediately following the parties’ separation, the father was extremely controlling in respect of the children, threatening that she would never get the kids. She further alleges that she received a number of threatening phone calls from the father, in which he threatened to belt in Mr J’s head.
I have been provided with a transcript of some of these telephone conversations, which have also apparently been provided to the police. Initially, the father indicated he could not remember making any specific calls. In the submission of his counsel, Ms Kari, he denied any threating component to the conversations in question, asserting that his comments were capable of various interpretations.
For obvious reasons, it is only to be expected that the circumstances surrounding the parties’ separation, after their long relationship together, would have precipitated a strong emotional response. In these circumstances, I must be careful not to accord too much weight to statements made in heated circumstances.
In this context, the father points to the fact that the mother is not in a position to assert that he has contravened any intervention order made against him or otherwise caused any direct harm to either the mother or Mr J. Essentially, he may have become upset and said things he should not have done but he has done nothing of a concrete nature to follow through with his threats.
The mother would have it differently. She asserts that the father has acted out violently, during handovers, causing [X] and [Y] to become upset. It is her case that the father’s behaviour had been escalating, which she says led to her feeling that she had to assume control of the children.
In support of his assertion that he represents no threat to the mother, through his counsel, the father has indicated that he would not oppose the making of a personal injunction for the mother’s protection pursuant to the provisions of section 68B of the Act. In all these circumstances, it is the flavour of the father’s case that he believes that the mother has overstated her concerns for tactical reasons.
The mother has deposed that she elected not to return [X] and [Y], to the father, on 7 October 2018, because his behaviour and threats were escalating. In her initial affidavit, she deposed that she believed the father had applied for a gun licence and, in June 2018, had threatened to blow Mr J’s head off, which caused her great alarm.
She also asserts that there was an unpleasant incident, on 19 July, when the father pursued Mr J and [W], on his motorcycle, when the mother was dropping off [X] and [Y]. She asserts that this caused [X] and [Y] to become frightened. It also resulted in the police being called.
In all these circumstances, the mother deposes as follows:
“I did not return [X] and [Y] to the Respondent on 7 October 2018. At that time, the Respondent’s behaviour and threats were escalating. He had a pending application for a firearms licence and was making threats against Mr J and myself, as set out in the recorded transcripts exhibited thereto. He was also trying to contact Mr J at work in September and October 2018.
…
The Respondent is an alcoholic and there was trauma and violence through the relationship. Due to the Respondent’s violent and abusive behaviour and threatening telephone calls, I had serious concerns for the children’s safety. This led me to the decision that they would be safer to stay with me rather than return them to the Respondent. I also had concerns about the Respondent not attending to his parenting duties and relying on [Z], also a child, to attend to those duties for him.”[9]
[9] Ibid at [46] & [68]

Conclusions

The parties, with all due respect, have got themselves into a complete and utter muddle, so far as care arrangements for the children are concerned. As a consequence, there is no clearly preferable course for the court to adopt. On any view, this is a carefully balanced case, with whatever outcome is ultimately preferred, at this early interim stage, quite likely to have some significant detrimental consequences for [X] and [Y].
In my view, both children are likely to benefit from having a meaningful level of relationship with both their father and mother. Although the parties have many criticisms of the other, it seems to me more likely than not that each is capable of discharging parental responsibilities for [X] and [Y]. It is also clear that the children are the subject of great love and affection from both their father and mother.
The definition of family violence is a wide one. I am not in a position to dismiss the mother’s evidence in regards to the threats allegedly made by the father against Mr J. It also seems to be the case that the police took these allegations seriously. In the emotionally charged circumstances prevailing, I accept that the mother is likely to have become fearful.
Regrettably, but for reasons related to ordinary human frailty, individuals do not always behave well at the point of relationship breakdown. It seems to me unlikely that the parties did agree, in June of 2018, on any detailed or longstanding arrangement for the care of the children. As such, it does not seem improbable to me that the mother was directed to leave the home and the father assumed responsibility for the care of [X] and [Y] arbitrarily and unilaterally, from her perspective.
However, I concede that I cannot be certain in this regard. Nonetheless, regardless of this uncertainty, the mother did not have any obvious accommodation opportunities available to her in the Town E area, particularly given that the father was disinclined to assist her in this regard. In these circumstances, I accept that she did face a situation of significant emergency.
I have a limited authority to compel the mother to seek out accommodation for herself in Town E. She is a free agent. My authority extends only to living arrangements for the children. I am not in a position to dismiss her assertion that she might lose her job. This would not be helpful to the family. I am also not in a position to reject her claim that she would feel unsafe in Town E.
In this context, prior arrangements for the care of the children assume great significance. In my view, the evidence indicates that the mother has been in a position to provide more care for the children historically than has the father, who has been both significantly ill and in full-time employment, since [X]’s birth; whilst the mother has had intermittent part-time employment, until she began her current position.
In these circumstances, I am not in a position to reject the mother’s assertion that she has been the children’s main provider of emotional and physical support in the past and it was the father’s actions which have unilaterally curtailed this. This cannot be regarded as good parenting or consistent with the ethos of the Act, which encourages shared decision making in respect of children.
Similarly, the mother is not free of blame for her actions in October of 2018. She acknowledges she did not discuss any change of care and school arrangements with the father. Rather, she elected to present him with a fait accompli in regards to these issues. This is not insightful parenting.
The mother’s case is largely posited on protective grounds. She asserts that her fears of the children being exposed to family violence dictated that she should assume their care. This, in turn, led her to make a very dramatic change to their living and school arrangements.
Essentially, given the father’s threats and his coercive control of the children, she asserts that she had few options open to her, which were not extreme in nature, because the father’s actions had also been extreme and high handed, so far as she was concerned. One extreme action begets another.
Just as the parties’ separation was extremely traumatic for them, so it is likely to have been for [X] and [Y]. In this context, the family consultant was not impressed with the mother’s conduct. She opined that children derive a sense of stability and continuity by being able to attend their same school and see their customary friends, whilst their home life is otherwise in turmoil.
The mother’s actions deprived them of this continuity and also removed them from the orbit of their sister and paternal relatives, who appear to have played a significant role in the care up to this stage. However, I also acknowledge that I have, as yet, not received any evidence from the paternal grandparents.
Nor am I in a position to assess the nature of the children’s relationship with Mr J and [W], other than in general terms, they have no history of living with them and necessarily the creation of such a blended family constitutes a significant level of adjustment.
The children have almost certainly been exposed to a significant degree of parental conflict. If what the mother alleges in respect of threats made to by the father to bash in or shoot off Mr J’s head are found to be true, this is behaviour consistent with the definition of family violence. It also not congruent with the attitude of a respectful parent.
At this stage, I am not in a position to disregard the mother’s evidence that she was frightened for herself, Mr J and the children because of these threats, particularly in the context of the father having access to firearms. However, her action, in resuming the care of the children, do smack of self-help.
There is no evidence regarding the preferences of the children. In any event, the children are seven and five years of age currently. As such, they are not likely to be sufficiently mature for their views to instrumental in any decision regarding their care arrangements.
Each party asserts that the children’s most significant relationship with him or her. Certainly, it must be the case that the children know their parents well, given they have all shared a household since the date of their births. In this context, it is the mother’s position that she provided the vast majority of [X] and [Y]’s care and therefore they are more emotionally dependent upon her and she is the better placed parent to supply their emotional needs.
This is a difficult, if not impossible issue, to determine in the context of an interim hearing. However, it does appear to be the case that, in the last few years of the parties’ marriage, the mother was more available to care for the children because she was not as intensively involved in the paid workforce as the father, who also had a demanding work schedule that was not especially conducive to extensive care provision, particularly when he was working day and night shifts.
I am not critical of the father for his working hours. It was important for the family that he work. I also note that for the last twelve months or so, the mother has gradually increased her hours of working. On balance, it seems to me to be more probable than not that the mother has been, at least historically, the children’s main provider of care.
It is also likely that [X] and [Y] have a close relationship with [Z] and their paternal grandparents. The mother’s actions have reduced the frequency of the interactions between them and the children. However, whatever is the outcome of the case, [X] and [Y] will still see their older sister and grandparents fairly frequently on weekends and during school holidays.
Each party asserts that the court must carefully consider the effects, on [X] and [Y], of changes to their care arrangements. In my view, this is a complex issue, which is at the heart of the controversy between the parties. At the outset, it should be noted that, as a consequence of their parents’ separation, [X] and [Y] have been subject to an enormous level of disruption. Their lives have been turned upside down.
The mother asserts that the father imposed his preferred care arrangements on her and the children, on separation, when he ejected her from the former family home. In so doing, she alleges he destabilised their long term care arrangements. In these circumstances, given she has resumed their care, a further disruption as proposed by the father, cannot be justified as being in the children’s interests.
The father points to continuity of living arrangement at Town E, the children’s long term home; the proximity of family and friends; and [X]’s previous school. He submits, with obvious justification, that the mother’s unilateral actions have upset this long standing continuity and placed the children in make shift accommodation and disrupted their education.
On balance, I have reached the conclusion that the father’s proposal has the potential to be more disruptive for the children than the mother’s. It also seems to me that her work arrangements are likely to provide her with more flexibility to care for children than the father’s, given the rigours of his shift. Inevitably, he will be heavily dependent on his parents, [Z] and other relatives to manage the children and continue working.
I accept that it would not be easy for the mother to return to live in the Town E area. It would have implications for her relationship with Mr J; it would impact upon her employment; and, if she remained working, it would be difficult for her to deliver the children to school at School H. In addition, she does not want to return to Town E because she feels unsafe there.
Although the distance between Adelaide and Town E is not of such moment to render this a relocation case, in the sense envisaged by lawyers. Rather, the mother was forced by the parties’ separation to make arrangements for her accommodation. Town E is a satellite centre to Adelaide. As such it cannot be said to be extraordinary that the mother would seek to live with the children, in Adelaide, close to where she is employed.
This is not to condone the mother’s actions but I accept she found herself in an extremely difficult situation on separation, when on her case, the father directed her to leave the former family home and declined her the use of another family property in Town E. However, at this juncture, it is not possible for me to make definitive findings regarding the extent of the emergency confronting the mother and whether it justified her actions.
On balance, I have come to the view that yet another change, within a period of less than three or four months, cannot be justified as being in the children’s best interests, particularly given the concerns surrounding the father’s availability and what I consider is the more likely historical care arrangements for the children.
There are significant practical difficulties, arising in the case, so far as [X] and [Y] interacting regularly with each of their parents, because of the distance between Town E and Adelaide. However, the distance is not so great that it must inevitably mean that the children will not be able to see each of their parents regularly.
As such, I do not think the case can be characterised as a unilateral relocation case per se. Rather, in very difficult circumstances, the parties have been jockeying for advantage, over the other, in respect of the children. This is regrettable and not calculated to be helpful to the emotional equilibrium of the children. Clearly, what [X] and [Y] need currently is predictability and certainty in their lives.
The family consultant was right when she indicated that children very often access such stability at their schools, which provide a sanctuary from exposure to parental conflict. In my view, it is a very closely balanced issue, so far as [X] is concerned whether it will be more disruptive for him to go back to School H, after a term away, or keep on at School A.
In a closely balanced case, the availability of the mother and her previous level of involvement with providing care for the children, tips the balance, in my view, in favour of the current status quo, notwithstanding its relatively short duration and the fact that it was obtained through a degree of self-help.
It is also relevant to consider the parties’ post separation relationship, which was marked by a significant level of controversy and conflict. I am satisfied that it is improbable that the parties agreed on any medium term arrangement for the care of the children.
As such, there was no consensual status quo created in June. Just as the mother presented the father was a fait accompli in October; so did he to her, when the parties separated. Necessarily, the powerful emotions released by such difficult separations, do not assist the individuals concerned to any process of clear parental decision making.
Given the controversial nature of the evidence, at present, I have come to the conclusion that it would not be appropriate for the presumption of equal shared parental responsibility to be applied at this interim stage. The parties will each continue to hold parental responsibility for making major long term decisions for the children.
I will also order that a family report be prepared and, although it is still an early stage, I will fix the case for final hearing on a provisional basis. I will direct that, pending further order, [X] and [Y] live with their mother and she be authorised to enrol the children at School A Primary School for the 2019 academic year.

Given the importance of the children’s relationship with their father; [Z]; and their paternal grandparents; I will adopt the mother’s proposal that the children spend every weekend with their father. I appreciate this may not be workable in the longer term as it will mean that the children have limited relaxed or hanging out time with their mother, which is more easily accommodated on weekends. Both parents will, however, have regular blocks of holiday time.
However, the regime will allow the father to spend significant periods of time with the children, although I appreciate this will also be dependent on the rolling provisions of his roster. For this reason, at this early and highly controversial stage, I deem this to be appropriate regime for the children and the one, best calculated in the short to medium term, to minimise any dislocation in their relationships with each parent.
I will direct that the weekend time start at 5.00pm each Friday and conclude the following Sunday afternoon, also at 5.00pm. The exchange of information, about the children, in a written form, in a communication book, is also likely to be helpful.
I will list the matter for directions following the release of the family report. I will almost make the usual injunctions regarding the parties denigrating each other to the children or discussing the proceedings in any proactive or influential way with them.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and forty five (145) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 25 January 2019

[2019] FCCA 138

25 January 2019

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

Remedies

Standing