Dafoe and Dafoe
[2011] FMCAfam 151
•2 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DAFOE & DAFOE | [2011] FMCAfam 151 |
| FAMILY LAW – Child – interim arrangements for care of child aged 3 – issues raised relating to interstate relocation – family violence – presumption of equal shared parental responsibility – best interests. |
| Family Law Act 1975, ss.4; 60CC; 61DA; 65DAA |
| MRR v GR [2010] HCA 4 Goode & Goode (2006) FLC 93-286 C & S [1998] FamCA 66 D and S V (2003) FLC 93-137 Godfrey v Saunders 208 FLR 287 Amador & Amador (2009) 43 Fam LR 268 In the Marriage of Patsalou (1994) 18 Fam LR 426 T & N (2003) FLC 93-172 JG & BG (1994) 18 Fam LR 255 Morgan v Miles [2007] FamCA 1230 Fragomeli & Fragomeli (1983) FLC 92-393 |
| Applicant: | MS DAFOE |
| Respondent: | MR DAFOE |
| File Number: | ADC 412 of 2011 |
| Judgment of: | Brown FM |
| Hearing date: | 24 February 2011 |
| Date of Last Submission: | 24 February 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 2 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lewis |
| Solicitors for the Applicant: | Johnston Withers |
| Counsel for the Respondent: | Mr Arnold |
| Solicitors for the Respondent: | John Crossan & Company |
ORDERS
The parties competing applications be fixed for trial for three (3) days commencing on 27, 28 and 29 July 2011 at 10:00am.
Pursuant to section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child [X] born [in] 2007 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to
Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
UNTIL FURTHER OR OTHER ORDER
The child of the relationship [X] born [in] 2007 (hereinafter referred to as “the child”) live with the mother.
The father have telephone communication with the child at times to be agreed between the parties and failing agreement on each Tuesday, Thursday and Sunday at 6:00pm Australian Central Summer time or Australian Central time as applicable.
The matter be listed for further directions and in particular to ascertain what form of expert evidence is needed for the final hearing following the appointment of the independent children’s lawyer on 14 April 2011 at 9:30am.
The parties have liberty to re-list the matter on seven (7) days written notice to make further application in respect of arrangements for the father to spend time with the child following receipt of further evidence particularly in the form of any psychiatric assessment on which the father may seek to rely.
IT IS NOTED that publication of this judgment under the pseudonym Dafoe & Dafoe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 412 of 2011
| MS DAFOE |
Applicant
And
| MR DAFOE |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Dafoe “the mother” and Mr Dafoe “the father” are the parents of [X] born [in] 2007. These proceedings are concerned with temporary arrangements for the care of [X], until there can be a full hearing of all the issues, which each party has raised about the other. Lawyers refer to such a hearing as an interim one.
It is a difficult case for all sorts of reasons. At present, [X] is living with his mother in [B], in rural South Australia. Ms Dafoe seeks orders from the court to ratify this situation.
The parties have been involved with one another for around sixteen years. They married, in [E] in central Queensland, [in] 2006. Since the time of his birth until recently, [X] and his family have lived at [C], which is around one hundred kilometres north of [E]. Mr Dafoe is employed as a [occupation omitted] at [workplace omitted] nearby.
In late September of 2010, [X] and the mother travelled to [B], where Ms Dafoe has family. The circumstances of the move are highly controversial, so far as the parties are concerned. The mother asserts that the move marked the end of the parties’ relationship and it occurred at the father’s direction and with his tacit agreement.
The father’s position is that the move was a temporary one, intended to give the mother some breathing space in which to deal with some personal issues, but it was always understood that she and [X] would return to [C] in due course.
As a result of his understanding of this background, Mr Dafoe seeks orders that would see [X] returning to live with him in [C], until such time as the court has an opportunity to address more comprehensively the mother’s wish to relocate [X]’s place of residence, with her, to [B].
It is Mr Dafoe’s position that [X] is well settled in [C] and has a significant level of relationship with him, which will be adversely affected if [X] lives far away from him in [B]. He is open, in theoretical terms, to the parties sharing the care of [X], if Ms Dafoe elects to return to [C], pending the final hearing of the parties’ substantive parenting applications.
The mother’s case is that it would be untenable for her and [X] to return to [C]. In addition, she argues that it would be contrary to [X]’s best interests, if he was to live predominantly in his father’s care pending final hearing. She characterises Mr Dafoe as a violent and unstable person. The underpinning of her case is that she had no realistic alternative, in late September of 2010, other than to move to [B], with [X], where she felt safe and had sources of emotional support.
As will become apparent, from what follows in these reasons for judgment, both parties have serious criticisms of the parental capacity and insight of the other. As such, there are potential risks to [X]’s well being arising from each parent’s proposal.
The mother’s case rests on the need to protect [X] from the psychological consequences arising from exposure to family violence. The father’s case rests on the benefits [X] is likely to derive from having a meaningful level of relationship with both his parents, which in Mr Dafoe’s case, has been significantly disrupted by the mother’s decision to remain in [B] with [X].
Given the distance between [B] and [C] and [X]’s tender years, which render his travel between the two locations problematic and expensive, whether the mother’s position is preferred or vice versa, the outcome of the interim proceedings is likely to have a significant impact upon [X], particularly in terms of the nature of the relationship he has with one or other of his parents.
In short, the case presents no easy or obvious solution. The responsibility for the court is to do the best it can to quantify and assess the various risks, which may arise so far as [X] is concerned and determine where his best interests lie, against its assessment of those risks. Risks lie in allowing [X] to be exposed to a potentially unstable and violent carer. Risks also arise for him from the potential truncation of an import parental relationship.
The legal principles applicable
Interim hearings have to take place in a shortened form. There is no time available for the cross examination of the parties concerned. In addition there is usually insufficient time for all the available evidence to be to hand. The most common evidence, which is not available at the interim stage, is in the form of subpoenaed documents and any expert assessment which has taken place of the family concerned.
These types of evidence, coming as they do from independent sources, are very often central to the resolution of parenting cases at the final stage. In addition, for obvious reasons, at the final hearing stage, the parties concerned have more time to prepare their cases and call all the necessary witnesses. Necessarily, the final hearing is a longer one than the interim hearing, which allows the court to make any necessary findings of fact – essentially deciding if it believes one party or one witness over the other.
The hallmark of many, if not all, interim hearings concerning children, is that they arise against a background of emergency after some crisis has arisen in the lives of the parties involved, most often their separation or some other significant event.
As a result emotions are often at their most raw and it is difficult for parents to maintain a degree of objectivity about what exactly has happened up to that stage. In such circumstances, it is only natural that one parent will think the worse of the other and assume that the worst has happened or is likely to happen to any children involved.
Such situations also cause great difficulties for the court. It may not be able to make findings of fact about issues in dispute between the parents concerned because all the evidence needed to make such findings is not as yet to hand. Yet the urgency of the situation and the degree of conflict and disputation between the parents concerned require that a decision be made.
The essential difference between an interim and final decision is that interim hearings do not determine long-term arrangements for the care of the child concerned, whereas final hearings do. However although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage.
In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act [see section 60CC].
What have been called the best interest considerations rest on two main pillars. The first is the importance to children of having a meaningful relationship with both parents. The second is the need to protect children from physical and psychological harm as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary consideration in how a court determines what is in the child's best interests by section 60CC(2).
Other criteria relating to how a court is directed to consider how the best interests of any children concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
There is a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility for him or her. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
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 living with each of his or her parents for “substantial and significant” periods of time. 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 1975 [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.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the child concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
Issues relating to a child’s best interest are to be determined by reference to the various matters listed in section 60CC. Issues of practicality are dealt with by section 65DAA(5), which set out a range of matters, which the court must consider as to whether it is feasible for there to be either an equal time or substantial or significant time regime for any child concerned.
The issues of practicality include the following: how far apart are the parties’ homes; what is the capacity of the parents concerned, both now and in future to implement a shared care arrangement; what is the parties’ level of ability to communicate with one another and solve parenting problems consensually; and most importantly what is the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[1]
[1] See MRR v GR [2010] HCA4 at paragraphs 13 and 15
In the case of Goode & Goode[2], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[2] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·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 interim proceedings only, if it would not be appropriate to apply the presumption.
·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.
Given the structure of Part VII of the Family Law Act, cases involving one parent wishing to move a major distance away from the other parent concerned raise significant issues for the court and the parties concerned. Such cases throw up competing principles, which are difficult to reconcile.
On the one hand, one of the purposes of the Family Law 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. It has been said that relocation cases need careful analysis.[3]
[3] See C & S [1998] FamCA 66
Accordingly, it is usually considered preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocations may have potential serious ramifications for the children concerned, especially when those children are young, in terms of their ongoing parental relationships.
The consequence of any proposed move does not turn on the distance involved alone. In determining the consequences of such a move, what is likely to be highly relevant is the age of the child concerned. For obvious reasons, the move of a baby or pre-schooler, in terms of the development of parental attachment, will be very different to those for a teenager, whose parental relationships are likely to be well established.
In addition, there may be financial considerations arising from the move. Wealthier families are able to cope more easily with issues of relocation because of their greater financial resources. Less financially equipped families may struggle to meet the fuel or other transport costs involved in relatively short moves.
In many circumstances, children are frequently able to maintain their relationships with significant people, including a parent, by less frequent periods of quality time spent in school holidays, which is supplemented by other forms of communication, such as telephone, webcam or letters.[4] As Kay J pointed out in Godfrey v Saunders[5] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[4] See D and S V (2003) FLC 93-137 at 78, 280
[5] See Godfrey v Saunders 208 FLR 287 at 298
It is a common occurrence, in contemporary Australia, for a parent to move voluntarily away, from a child or children concerned, after a relationship breakdown. In addition, children are often relocated away from one of their parents, as a result of a consensual decision made by the parents concerned. Often financial imperatives are involved.
These types of situation come about because of the high level of mobility in Australian society and the reality that many parents wish to pursue career and personal opportunities, in a different place to that in which they lived whilst in a relationship with the other of their child’s parents. High rates of divorce are also an incident of modern Australian life.
Although the shared parenting legislation has added emphasis to the principle that children benefit, in their emotional and social development, by having as extensive a relationship as possible with both their parents, there is no principle of law that the parents of children are required to live indefinitely close to one another, in order to ensure that such an optimal outcome is achieved. The recent legislative amendments have not changed this situation.
Pursuant to rights read into the Australian Constitution, Australians have a right to live how and where they choose. Australia is a free and democratic society, which prizes the freedoms of its citizens. Accordingly, the court cannot ignore the legitimate expectations of parties who come before it regarding these personal freedoms.
However, the best interests of any child concerned remain the paramount consideration in the outcome of every type of parenting case, including a relocation one. As one of the components of a child’s best interest is the right to have a meaningful relationship with both his or her parents, I must consider the adequacy of the arrangements proposed by the relocating parent for any child concerned to spend time with the other parent involved.
The provisions of the Family Law Amendment (Shared Parental Responsibilities) Act have added emphasis to the importance of a child maintaining a meaningful level of relationship with both of his or her parents.
However, they have not specifically prohibited the movement of a child away from one of his or her parents or placed some specific evidentiary onus upon the parent wishing to relocate. If the legislature had intended to prohibit such relocations, it would have specifically done so.
Rather, what the court is required to do is to weigh and balance the primary considerations and the additional considerations in respect of the parties’ competing proposals, to determine the best outcome for the child concerned.
In so doing, it cannot ignore a parent’s entitlement to freedom of movement. In my view, it is incumbent upon the court to consider these various principles at both the interim and final stage. I think this follows from the directions provided by the Full Court in Goode.
However, given the more limited evidence usually available at the interim stage, the court must exercise considerable caution, in respect of such relocation issues, when the evidence before it is necessarily provisional and untested.
Accordingly, 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.[6]
[6] See C & S [1998] FamCA 66
Background and matters agreed between the parties
As has previously been outlined, the respective positions of the parties are polarised in the extreme. As such, there are few agreed facts between them.
The mother was born [in] 1978. The father was born [in] 1978. They met when both were teenagers, living in the Northern Territory. The relationship between them lasted around sixteen years. [X] is the parties’ only child.
The parties moved to [E], in Queensland, at the end of 2002, when the mother commenced studies at [omitted]. The father began work at [omitted] in [C] in mid-2004. [C] is about one hundred kilometres north of [E]. The nearest large centres are Mackay and Rockhampton.
Initially, the father commuted between [E] and [C], for his work, but at the end of 2004 the parties moved to live in [C]. They were apparently allocated a house in the town, which is owned by [omitted], the operators of the [workplace].
[C] is a small rural township. The major employer in the town seems to be [omitted]. Mr Dafoe has indicated that he is unable to vacate the former family home at [address omitted], [C], because it is owned by [employer omitted] and allocated to him as part of the conditions of his employment.
However, Mr Dafoe asserts that there is plenty of other readily rentable properties in [C], which would be suitable for the mother and [X]. He has also indicated that he would be willing to provide financial assistance to the mother to enable her to rent a property in [C].
The mother refutes these suggestions. It is her case that property is scarce and expensive in [C]. There is no dispute between the parties that Mr Dafoe is securely employed, earning a salary of around $140,000.00 per annum.
Ms Dafoe is not currently employed. She is currently living with a friend, Mr B at [address omitted], [B]. Mr B has deposed that he and the mother “commenced a relationship” at the end of November 2010.[7] Ms Dafoe’s sister lives in [B]. Her parents spend around half of each year in [B] and travel for the remainder of each year.
[7] See affidavit of Mr B filed 22 February 2011 at paragraph **
The father’s closest relative appears to be his mother, Ms D. She lives in [omitted] in the Northern Territory. However, she has indicated that she is willing to relocate to [C] to assist Mr Dafoe with caring for [X], if [X] is placed in his care prior to final hearing.[8] At present, Mr Dafoe works on a seven days on/seven days off roster at the [C] [omitted].
[8] See affidavit of Ms D filed 22 February 2011 at paragraph 8
The mother has not delineated, with any precision, either the interim or final orders, which she seeks. On a final basis, (and presumably also on an interim basis) she seeks that she should have sole parental responsibility for [X] and he should live with her. She proposes that [X] spend time with his father, at an unspecified location in South Australia, at times to be agreed between the parties.
Given what she asserts is the father’s unstable psychiatric condition, she is opposed to the father spending time with [X] in Queensland. It is also her view that it would be cheaper and easier for Mr Dafoe to travel to [B] to spend time with [X] than for [X] to travel to [C] to spend time with Mr Dafoe. Ms Dafoe is open to [X] speaking regularly with his father on the telephone.
The father’s position is that [X] should be returned within 48 hours to [C]. Thereafter he proposes that the parties should have equal shared parental responsibility in respect of [X]. In these circumstances,
Mr Dafoe proposes that [X] should live with him and the paternal grandmother, Ms D and spend time with his mother for half of each Queensland school holiday.
However, in the event the mother elects to return to live in [C], he proposes that [X] should spend periods of time, with his mother, to coincide with his seven day work on roster. As previously indicated, in the short term, he is prepared to assist the mother with the cost of accommodation in [C], although this proposal has not been fleshed out at all.
Prior to September of 2010, the relationship between the parties had been a difficult and turbulent one. One of the sources of friction appears to have been the nature of the mother’s relationship with another person. Matters came to a head in September of 2010, when the wife and [X] moved to [B].
In between late September of 2010 and December of 2010, the mother and [X] apparently visited Queensland on at least two occasions.
Ms Dafoe says she went to [C] to finalise her affairs there. It seems to be the case that [X] spent a few days in the care of his father prior to Christmas.
In mid-January of 2011, arrangements were made for [X] to spend around three weeks with his father. During this period, it was anticipated that father and child would also spend time with their wider paternal family in [L]. The arrangement was that the mother and [X] flew to Mackay and [X] was delivered to his father at the airport before the mother flew back to Brisbane and onto Adelaide. It is her case that she would collect [X] at [L] in early February.
On 29 January 2011, the mother flew from Adelaide to Brisbane and went on to the apartment in which the father, [X] and the paternal grandmother were staying. This was a few days earlier than had been earlier arranged. The mother’s case is that she was anxious about how the father had been communicating with her over the telephone and his apparent reluctance to allow her to speak with [X].
The few days during which the parties shared the apartment in [L] were a tense and difficult time for all concerned. There were discussions between the parties as to future arrangements for the care of [X]. The mother had a return ticket to Adelaide for herself and [X].
The mother asserts that she and the father agreed to travel from [L] to a hotel in the vicinity of the Brisbane airport, prior to her and [X] returning to Adelaide on the pre-arranged flight, which was departing Brisbane in the early morning of 2 February 2011. The mother asserts that there was a clear arrangement that she and [X] would leave Queensland together.
At around midday on 1 February 2011 the father left the apartment in [L] with [X]. It seems common ground that there was no explicit discussion between the parties regarding this action taken by the father and, in such circumstances, the mother was obviously concerned at where [X] was being taken.
The mother says she contacted the father by mobile telephone and he said “I’ve taken [X] and I’m not coming back. You’re not taking him back tomorrow.” The father confirms that he told Ms Dafoe that “she was not taking [X].” At 13.52 hours on 1 February 2011, the mother reported [X] to the [L] police as a missing person. On 2 February 2011, in response to being contacted by police, the father presented [X] for inspection at the [G] Police Station.
It is the father’s case that the police had no concerns regarding either his presentation or the welfare of [X] and allowed him and [X] to go on their way. It is his understanding that the police informed the mother of this state of affairs. He was unwilling to provide information to the mother about his and [X]’s whereabouts until the parties “had agreed on arrangements for [X]…”
The mother returned to [B] without [X] and on 4 February 2011 commenced proceedings in this court. In particular, she sought a recovery order in respect of [X] asserting that she did not know of her whereabouts and had grave concerns about his safety.
At Ms Dafoe’s request, her application was listed urgently, before me, on 8 February 2011. The application had not been served on Mr Dafoe. I was told that Mr Dafoe and [X] had been seen at [C] but had left the vicinity of the area and their whereabouts was unknown to the mother and those advising her.
I was also told that it was believed that the father’s parents and sister knew of Mr Dafoe and [X]’s whereabouts and it was also possible that the authorities at the [C] [omitted] had some information concerning the location of the child.
The mother further deposed that the father had been behaving erratically; had expressed suicidal thoughts; was drinking heavily; and had access to firearms. In all these circumstances, Ms Dafoe deposed that she was anxious about [X]’s safety. She was also concerned that Mr Dafoe had not returned to work on 4 February 2011, as he had been scheduled to do.
For obvious reasons, I am usually loath to make significant orders in the absence of a party, particularly if that party has not been served with the applicable proceedings. However, in this case I was persuaded that sufficient gravity attached to the situation to make ex-parte orders and on 8 February 2011, I made the following orders:
“1. Pursuant to Rule 5 of the Federal Magistrates’ Court Rules the applicant has leave to proceed on an urgent basis notwithstanding the respondent has not been served.
2. Pursuant to Section 67P of the Family Law Act 1975 as amended, upon receipt of the information as to the whereabouts of the child [X] born [in] 2007 and/or the Respondent father MR DAFOE, such information may be provided to the Applicant’s Solicitors Johnston Withers and any process server instructed by the Applicant mother’s Solicitors.
3. Pursuant to Section 67M of the Family Law Act 1975 as amended, the Manager of [C] [workplace omitted provide to the Registry Manager of this Court at Adelaide on [phone number omitted] any information it has regarding the location of the child [X] and/or the Respondent father.
4. Pursuant to Section 67M of the Family Law Act 1975 as amended the Respondent father’s parents MS D and MR D be directed to provide to the Registry Manager of this Court on [phone number omitted] and disclose to the Court at Adelaide such information they may have as to the location and contact details of the child [X] and/or the Respondent father.
5. Pursuant to Section 67M of the Family Law Act 1975 as amended the Respondent father’s sister Ms R be directed to be directed to provide to the Registry Manager of this Court at Adelaide on [phone number omitted] and disclose to the Court such information they may have as to the location and contact details of the child [X] and/or the Respondent father.
6. Pursuant to Section 67U and 67Q of the Family Law Act 1975, as amended a Recovery Order do issue authorising and directing all members of the Police Force of the Commonwealth of Australia and members of the Police Force in States and Territories of Australia to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place if necessary by force to recover the child [X] and deliver to the said Applicant mother at such place as may be agreed between the Police and the Applicant mother.
UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:
7. The child [X] lives with the Applicant mother.
8. The respondent file and serve a Response and Affidavit in support within 14 days of today’s date.
9. Further consideration of the matter is adjourned to 23 February 2011 at 9:30am (Australian Eastern Summer time).
10. The parties have liberty to apply on short notice and the father or his legal advisor are given leave to appear on the adjourned date by telephone provided he give to the Registry Manager a landline telephone number 24 hours prior to the specified hearing by contacting [phone number omitted].”
At the time, I indicated to counsel for the mother that I anticipated there would be considerable controversy between the parties, particularly in respect of the circumstances of the mother and [X]’s departure for [B] in September of 2010.
However, I was concerned about what, prima facie, appeared to be a unilateral action, on the father’s part, in apparently absconding with [X]. I also considered that the mother had delineated some significant potential risks, so far as [X]’s ongoing safety was concerned, if he remained in the care of his father in the short term.
It is the mother’s position that the parties’ relationship was marked by significant incidents of violence directed towards her by the father. Against this background, on 2 February 2011, the mother applied for a temporary protection order, pursuant to the Domestic and Family Violence Protection Act 1989 (Qld) at the [L] Magistrate Court. This application was granted and the substantive application was adjourned until 2 March 2011.
The mother travelled to [C] on 9 February 2011. The father was apparently served with both the Temporary Protection Order and the orders of the court made on 8 February 2011 by police at [C], which suggests that his whereabouts was not as imprecise as initially reported. [X] was returned to the mother at the [C] Police Station on 9 February 2011.
The father has responded promptly to the mother’s application. He has filed affidavits from himself and his mother. Ms Dafoe has filed further answering affidavits from herself and from Mr B. Annexed to both parties’ affidavits are copies of emails which have passed between them. There are also transcripts of text messages exchanged, in the period since early February 2011.
In addition, the mother has provided a report, dated 16 February 2011, from Ms S, who describes herself as a mental health social worker psychotherapist. Ms S has suggested that Ms Dafoe “appears to be experiencing Major Depressive Disorder and Generalised Anxiety Disorder.” Ms S’s report has not been subjected to any scrutiny.
Matters in dispute and the evidence of each of the parties
Before turning to the evidence of the parties in more detail, it is useful to summarise the major areas of dispute between them:
·The mother asserts she was [X]’s primary carer.
·The father asserts he was [X]’s primary carer during the seven days off period of his work roster.
·On 28 September 2010, the mother says she was “evicted” from the [address omitted], [C] home. The implication being that she had no viable option other than to leave [C].
·The father says he asked the mother to leave the property so that she could seek treatment for her depression and “address the reasons why she continued to act in an unfaithful manner.”
·The implication of the mother’s evidence is that when she left [C], it was obvious the relationship between the parties was over.
·The father deposes that, after late September, the parties remained in regular communication and it was his understanding that the mother and [X] would be returning to [C] in the foreseeable future.
·The implication of the father’s evidence is that he was not consulted about any permanent move of [X] to [B] and, if he had been, he would not have agreed to it. He would characterise the mother’s behaviour as a relocation by stealth.
·The mother’s case is that the father has pressured her to return to the relationship and has and will continue to use [X] as a means of accomplishing this outcome.
·The father’s position is that he has found the mother’s behaviour in the period since September 2010 to be confusing and contradictory. He asserts that he now accepts the marriage between the parties is over.
·The mother asserts that the father has been uncooperative with her and the police since February of 2011 and has refused to reveal [X]’s whereabouts to either her or police or return [X] to her “without a court order”.
·The father asserts that he has been cooperative with police as is demonstrated by his willingness to attend at the [G] Police Station with [X].
·The mother’s case is that the father is a controlling and violent person and, as such, is psychologically unstable. In support of her position she points to the following matters:
Ø on 20 December 2010, the father held a knife to his wrist in her and [X]’s presence and threatened to kill himself;
Ø the contents of a long letter emailed to her by the father on 14 January 2011, which she categories as a suicide note;
Ø in this letter, the father acknowledges slapping the mother and hitting doors, cupboards, walls. In this document the father also indicates he has considered suicide;
Ø the father told her he had “lost the plot” on 29 January 2011 and had been prescribed anti-depressant medication;
Ø the father head-butted a verandah pole on 30 January 2011 causing his head to bleed;
Ø the father has been verbally abusive towards her throughout their relationship;
Ø the father’s past behaviour towards her has been controlling and possessive, including checking her telephone messages and questioning her about her whereabouts;
Ø the father has been unwilling to accept the relationship between the parties is over;
Ø the father has hired a private investigator to monitor her behaviour in [B]. This person has also photographed the mother at the Adelaide Airport;
Ø the father has withheld financial resources from her.
·Given these factors, the mother is concerned about the father’s recent level of alcohol consumption, which she observed at [L] and the fact that he has access to firearms at the home in [C].
·The father denies he ever held a knife to his wrist and threatened suicide.
·The father asserts that it was reasonable for him to hire a private investigator to ascertain whether the mother was being truthful in her statements to him that she was not involved with another person, not to provide surveillance of her for any extended period.
·The father asserts that he drinks mid strength beer in objectively reasonable quantities.
·The father asserts it is the mother who is mentally unstable as is demonstrated by the mixed messages she has given him regarding the state of their relationship.
·The father says he banged his head out of frustration at the mother’s deceit to him.
·The father says he has talked about suicide occasionally in the past but would never follow through with such an action. He has received counselling to address his mental state. He denies that he is currently suicidal.
·The father says he wrote the letter of 14 January 2011 to explain to the mother’s family why the parties’ marriage had broken down. He denies the letter had anything to do with his suicide.
·The father says there is nothing sinister in the fact that he did not return to work, as scheduled on 4 February. Rather he took leave from work “to try and resolve parenting arrangements for [X].”
·The father has concerns about the stability and suitability of the mother’s living arrangements in [B] for a child of [X]’s age.
·The father states that it is feasible for the mother to find alternative accommodation for herself in [C], particularly if he assists in the provision of the rent.
·The mother asserts that suitable accommodation is difficult to find in [C].
The mother’s evidence
Much of the mother’s case revolves around her assertion that the father is violent and unstable and accordingly the safest place for [X] to be is in her care in [B]. She categories Mr Dafoe as a controlling and obsessive person, as most compellingly demonstrated by his hiring a private investigator to observe her. She also has grave concerns about Mr Dafoe’s psychological stability at present.
Ms Dafoe places significant emphasis on the contents of the letter sent to her by Mr Dafoe on 14 January 2011. I find the letter troubling. I acknowledge that I have not heard Mr Dafoe’s explanation of its contents in any detail. He does however accept that he is the letter’s author and its potential audience was wider than the mother herself. I accept that it is often very difficult to place the contents of such a very personal document in its right context, particularly if it is composed at a time of great emotional stress.
The letter came after an equally personal and emotional one from the mother to him, dated 29 December 2010, in which she unequivocally stated the relationship between the parties was over. In the letter
Ms Dafoe makes many criticisms of the father’s behaviour towards her during the parties’ marriage. She complains of having been “kicked out” on 28 September.
Mr Dafoe’s letter is a catalogue of Ms Dafoe’s alleged infidelities during the parties’ marriage. Clearly it is not my function to pass judgement on these matters but I am concerned at the suggestion that this information would be provided to the mother’s family as an explanation of the failure of the parties’ marriage.
More concerning to me is the admission made by the father that Queensland Police had contacted him after he had threatened to kill a person if he ever came near the mother again at sometime in 2009. In addition the letter contains the following statement:
“My constant depression over these events the last 15 odd years has severely affected my life. I have been on the point of suicide occasionally and it seems to sit in the back of my head quite often. I used to get scared when I was even just handling a kitchen knife or at work operating a piece of equipment when I start thinking how quick and easy it would be to end it. I was an enthusiastic hunter in earlier years but am too scared to open my gun safe in case I do something stupid. Only very recently have these thoughts cleared my mind as I realise the futility of pursuing my relationship with my wife and almost feel relieved that it is finally over. My only focus now is the life and up bringing of my son and ensuring he has every opportunity possible to lead a normal life with the love, guidance and affection of his father.”
Other statements, in the letter, which cause me concern, include the following:
“I have tried to control Ms Dafoe’s life in some respects, trying to limit her use of social networking sites on the internet, getting angry over the size of her phone bills but these actions were only to attempt to prevent her from cheating. It has turned me into an unhappy person who distrusts people for no reasons and I have suffered from insomnia, nervousness and depression for many years. This has affected my relationships with all of my family and friends, I have alienated male friends that I have felt suspicious of or felt that Ms Dafoe was attracted to them in some way.
…
My own drinking has caused friction in our relationship and upset Ms Dafoe. Over the past 18 months since discovering
Ms Dafoe’s affair with Mr M I have consumed alcohol on pretty much a daily basis. I have never become violent and still have an active lifestyle and I never do anything silly under the influence of alcohol. Without my family I just feel bored and lonely. I have been taking anti-depressants for several months now and have managed to reduce my alcohol intake. I am a little unsure but feel I am in control now, I don’t need to be half pissed just to get to sleep and if I am having trouble I resort to sleeping pills instead of more beer.
Besides the one physical attack against Ms Dafoe that I described earlier the only violence I have displayed around her has been against doors, walls, cupboards, phones and anything that has got in my way. I have never raised a hand against her either prior to or since that incident. Every time I have hit something it has been after discovering another affair or Ms Dafoe going missing somewhere. Ms Dafoe has indicated to me on several occasions that she is scared of me. I know what genuine fear feels like I have felt it for years and if Ms Dafoe genuinely holds these feelings against me it must be detrimental to us having a solid relationship together. I don’t know what other actions I have taken to make her feel fear towards me and she cannot explain any reason for it. I don’t know if she is confused, making it up or genuinely has those feelings. I deep down feel that she holds no fear of me hurting her or she would be too scared to continually cheat on me in such a blatant manner without packing up and leaving first.
…
My own mental state and actions would have further alienated
Ms Dafoe. I would sneak home from sometimes to see what she was doing, questioning her if a vehicle seemed to have used a lot of fuel as to where she had been. I have not been like this constantly and am by nature a trusting person but no wife should have to put up with this behaviour if it was unjustified. I have also purchased a tracking device over the internet recently which goes to show my own mental instability. I would some times come home on nightshift and stand under the house listening for strange noises and check for any strange vehicles parked in the area. Ms Dafoe had no knowledge of the tracking device or that I would stand under the house sometimes but it indicates my behaviour in general and how it would have added stress to our relationship.”[9]
[9] See annexure “KMD5” to the wife’s affidavit filed 14 February 2011
The mother’s position is that the father has demonstrated himself to be a controlling person by reason of his actions in taking [X] away from [L], when it was clearly the case he would have known it was her intention to return to [B] with him. She asserts that the significance of this unilateral action, on his part, was intensified by his unwillingness to provide information to her about [X]’s whereabouts and his non return to work on 4 February.
The father’s evidence
It is clear to me (and not generally controversial) that the marriage between the parties had been very unhappy for some time, particularly in 2009 and 2010. The mother agrees that she had an involvement with one other person during this period. She denies that she had many such relationships. I am unable to resolve this issue at this stage of proceedings and doubt that it is likely to be a relevant matter if and when the matter proceeds to a final hearing.
However this issue forms the backdrop to what occurred in late September of 2010, when the father tacitly acknowledges that he directed the mother to vacate the former family home. The implication being that this was not an unreasonable action on his part. It also seems to be the case that the father was aware that the mother and [X] would go to [B] in these circumstances but only for a limited period of time.
Certainly the father did not institute proceedings to compel the return of the child to [C]. He made contact with a Family Relationship Centre in Queensland in late November of 2010. Shortly prior to this contact the father acknowledges that the mother had told him the relationship between the two was over but he asserts she later informed him she would be coming back to Queensland to reconcile with him, so he did not pursue the mediation.
The father states that this equivocal behaviour, on the mother’s part persisted throughout December, particularly when the mother and [X] visited him in the period immediately prior to Christmas. It is his case that when [X] and the mother left Queensland again, it was his understanding that they were going to return fairly shortly.
It is the father’s evidence that it became clear to him that the mother had no intention of reconciling the marriage when she arrived in Queensland in January. He deposes as follows in his affidavit:
“On 1 February 2011, the mother and I argued as I wanted [X] to return to the former matrimonial home with me. I missed [X] and wanted him to live with me. I also still wanted to reconcile the relationship if it was possible, but believed it would not be possible if the mother remained in [B]. When it was clear to me that there was no chance of reconciliation I left with [X]. I didn’t want the mother to relocate to South Australia with [X] so that I could not spend regular time with him. I was concerned about the living arrangements for him in South Australia and his welfare given my new knowledge of where he was living. I wanted to reach agreement as to the time I would spend with [X] before he was taken from me.”
The tenor of much of the father’s case is that it is the mother’s behaviour which has been erratic and provocative rather than his. He accuses her of being more than capable of acting unilaterally, in respect of parenting arrangements for [X]. Again, in these circumstances, he would assert that it was not unreasonable of him to have returned [X] to the environment with which he was most familiar in [C].
He would categorise himself as being as equally involved, if not more so, in the parenting of [X], as the mother. In addition he has raised concerns about the stability of her accommodation in [B] and the fact that her relationship with Mr B is essentially unproven at this stage.
Mr Dafoe denies that he is an inherently violent or aggressive person. He denies that he drinks alcohol to excess. He denies that he told the mother he had lost the plot. He says he has resumed taking prescribed anti-depressant medication. He asserts that he banged his head out of frustration at the mother’s behaviour. He asserts that the psychological pressure he has been under has now eased as result of the end of uncertainty about the status of his relationship with the mother.
It is Mr Dafoe’s position that it is the mother who is fixated with the issue of suicide. He denies the letter he wrote was an indication of suicidal thoughts. Rather he composed it as an explanation as to why the relationship between the parties failed. In these circumstances, he vehemently denies that he represents any sort of threat to [X]’s well-being.
Consideration of the applicable section 60CC factors
a) The primary considerations
The applicable legislation places two considerations in a position of pre-eminence – the benefits of any child concerned having a meaningful relationship with each of his or her parents; and the need to protect the child from harm, as a result of exposure to abuse, neglect or family violence. This is a case where there is considerable tension between these two primary considerations.
It would not appear to be greatly controversial between the parties that Mr Dafoe has played a significant role in [X]’s life to date. He shared the same household with [X] up until September of 2010. The mother has been willing to entrust [X] to the father’s sole care as recently as January of 2011. In these circumstances, it would appear to be the case that [X] knows his father well and loves him.
On the basis of the evidence currently before me, I do not think it is possible to categorise one parent as being [X]’s undisputed primary carer. Both have been involved in his care and both love him very much. For his part, the father was willing to entrust [X] to the mother when she and [X] left [C] in September of 2010.
Accordingly, [X] is likely to benefit from interacting regularly with both his parents. The emphasis in the applicable legislation is on the benefits to a child of meaningful parental relationships. Meaning in child/parent relationships is likely to come from parent and child being able to interact in a variety of circumstances and conditions.
The opportunity to interact with a loving parent clearly has the potential to confer a great benefit on any child concerned. Children need the love of their parents. The years of early childhood are important for children developing warm and intimate relationships with their parents.
Such relationships derive their strength from the opportunity to know a parent at first hand and to have a facility to share memories and common experiences together. In addition, Mr Dafoe is likely to be [X]’s most important male role model.
This is the thrust of the father’s case. He argues that his relationship with [X] may be robbed of meaning if he (Mr Dafoe) is removed as a living and daily presence in [X]’s life. Given [X]’s tender years, he fears that [X]’s level of warmth and intimacy with him will be lost if he lives far away from his father in [B]. He is concerned that [X] will not be able to sustain a properly meaningful level of relationship with his father through infrequent holiday contact and the artificial mechanisms of electronic communications.
In these circumstances, he argues that it behoves the court to do all it can to advance [X]’s paternal relationship, when it is Ms Dafoe who wishes to truncate it by moving [X] away to [B]. He also points to the fact that, at this stage, the parties have demonstrated that they have no capacity to reach any degree of consensus whatsoever about this major long-term issue to do with [X] – where he will live and the implications of this for him spending time with his parents [see Family Law Act at section 4].
It is the father’s case that until the court has resolved this issue it is more appropriate that [X] live in [C]. Although the court cannot compel Ms Dafoe to return to the town, it is open to her to do so and this will provide the most feasible mechanism by which [X] may have a meaningful level of relationship with both of his parents. He would categorise Ms Dafoe’s actions in wanting to move [X] to [B] without his formal acquiescence as poor parenting, given that the issue relates to a major long-term issue to do with [X].
Necessarily the mother must concede that the move of [X] to [B] must have significant implications for [X]’s level of relationship with his father. Obviously [X] will not be able to spend time with his father as regularly as he did when the two shared the same household in [C]. In addition, given [X]’s age at present, it will be difficult for the two to engage warmly on the telephone. The distance between [B] and [C] will also render it problematic for them to spend extended periods of time with one another regularly.
However, it is Ms Dafoe’s case that the court, at this stage of its deliberations, must give greater emphasis to the other of the primary considerations – the need to protect [X] from the psychological and physical consequences arising from him being exposed to family violence. This requires to the court to engage in some sort of evaluation of the risk Mr Dafoe’s future behaviour may potentially pose to [X] and put in place orders which are commensurate with that level of risk.
If the court comes to the conclusion that [X] living with Mr Dafoe would represents a risk to [X], which would be unacceptable for the court to take, at this stage of proceedings, it should not make orders to give effect to either of the alternatives proposed by Mr Dafoe.
The mother’s position is that the presumption of equal shared parental responsibility is rebutted in this case, as the court has reasonable grounds to believe that Mr Dafoe has engaged in family violence in the past. She points to the fact that Mr Dafoe has admitted slapping her in the past and relies on her other evidence to ground this submission.
In the alternative, she argues that, given the conflicted nature of the evidence before the court and the serious content of her allegations, it would not be appropriate for the presumption to be applied at this interim stage and, as such the court is required to give primacy to the need to protect [X] from harm.
At the interim stage, allegations of family violence pose a significant difficulty for the court. Such allegations are often difficult to corroborate or establish definitively. However all allegations of family violence must be closely examined by the court, given the serious consequences exposure to family violence may have for any child concerned.
Allegations of family violence are easy to make and difficult to refute. This is because family violence, more often than not, arises within the private confines of a family home and may evoke emotions such as embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised that family violence is prevalent in all social settings and walks of life.
However the absence of corroboration does not abrogate the court’s responsibility to deal with allegations of family violence stringently.[10] The court’s responsibility is to remain focussed on the best interests of the child concerned in the proceedings before it.
[10] See Amador & Amador (2009) 43 Fam LR 268
Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child's parents are not appropriate psychological role models for children.[11] In addition, a violent parent may cause a child to be fearful and feel anxious and powerless. Exposure to family violence may have developmental implications for a child.[12]
[11] See In the Marriage of Patsalou (1994) 18 Fam LR 426
[12] See T & N (2003) FLC 93-172 at 78,760
The concept of family violence is specifically defined in the Family Law Act [section 4]. It means conduct, whether actual or threatened, by a person towards another or towards the property of a member of a person's family that causes that or any other member of the person's family reasonably to fear for or reasonably to be apprehensive about his or her wellbeing or safety.
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Obviously the latter behaviour is the more damaging so far as children are concerned.[13] Not all incidents of family violence will be necessarily damaging for a child.
[13] See JG & BG (1994) 18 Fam LR 255 at 261
In assessing the extent and significance of the violence alleged, it may be necessary for the court to attempt to categorise the type of violence involved, as family violence is not homogeneous in its qualities and can arise in a variety of contexts.
This need for categorisation of family violence stems from the court’s fundamental responsibility to assess prospective dangers for the child concerned, arising from the possibility of further exposure to family violence, rather than to punish a parent for past failings, particularly if that failing arose against a background of difficult circumstances or indeed as a result of provocation or incitement. For self apparent reason, the task of categorisation of allegations of family violence is particularly difficult at the interim stage.
Social scientists have defined family violence as falling within four major categories, namely:
·coercive controlling violence;
·violent resistance;
·situational couple violence; and
·separation instigated violence.[14]
[14] See Kelly, JB, Johnson, MP “Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions” (2008) 46 Family Court Review 476
Coercive controlling violence is a pattern of conduct, at times involving force, aimed at intimidating and controlling one parent by the other. Violent resistance occurs when a partner uses force to defend him or herself, as an immediate reaction to an assault. Situational couple violence results from situations or disputes between partner which escalate into physical violence, but neither party is frightened by the other. Separation instigated violence occurs in the context of separation, where there is no previous history of violence in the relationship between the parties.[15] Of these categories, the first is regarded as the most serious by social scientists.
[15] ibid at p 482
Ms Dafoe has not had a lengthy period of time to prepare her affidavit material. In addition, her evidence has not been subject to any exhaustive scrutiny. It cannot be said that her counsel has alluded specifically to the aforesaid categorisations of violence. However that does not, in my view, absolve the court of its responsibility to assess the gravamen and significance of the allegations of violence made.
Although Ms Dafoe is unable to point to incidents where she personally has been significantly injured by the father, it is her case that her accounts of the father’s behaviour are plausible and tend to suggest his conduct is of a controlling and coercive kind and, as such, needs to be closely considered by the court.
In this regard, she has impliedly stated that the father has displayed a significant potency in his violent behaviour.[16] He has indicated suicide in her presence and the presence of [X]. He has access to firearms. She would also assert that the father’s use of alcohol render him likely to have a diminished capacity to inhibit violent impulses.
[16] See Jaffe PG, Johnston JR, Crooks CV and Bala,N “Custody Disputes Involving Allegations of Domestic Violence: Towards a Differentiated Approach to Parenting Plans” (2008) 46 Family Court Review 503
In addition, she would say that the father has recently displayed a degree of depression stemming from the stressful events of the parties’ separation. She would also categorise the father’s behaviour in departing with [X] from [L], without any forewarning, as indicative of a person who acts unpredictably.
The parties fundamentally disagree as to whether Ms Dafoe is frightened of Mr Dafoe or not. Ms Dafoe says she is very frightened of him. Mr Dafoe would have it otherwise. However Mr Dafoe has acknowledged, in the letter of mid January 2011, one episode of assault on Ms Dafoe and violent behaviour towards property in her presence. This behaviour fits within the definition of family violence provided by the Act.
However, the mother’s case is more subtle than this alone. She asserts that the father has been controlling of her and uses such control to intimidate her. She asserts that the letter the father wrote indicates his possessiveness of her. She points to the father’s recourse to a private investigator as evidence of his obsessive preoccupation with her.
All in all, the mother’s counsel argues that the father’s behaviour throughout the marriage but particularly recently should sound loud alarm bells for the court about the future safety of both [X] and the mother, if orders are made either providing the primary residence of [X] to Mr Dafoe or which would result in her having to return to live in [C] against her wishes. It is her case that Mr Dafoe has demonstrated that he is capable of using [X] as a mechanism to control and intimidate her.
At this interim stage, I find it difficult to dismiss the mother’s concerns. Clearly the situation between the parties has been highly volatile and powerful emotions have been released on both sides. The father’s letter does indicate a significant level of suicidal ideation in the past. Although I am unable to resolve the truth or otherwise of the mother’s allegation that the father has recently threatened suicide by applying a knife to his person, in her and [X]’s presence, I would regard such an episode as a significant act of family violence.
The additional considerations
[X] is too young to be able to express any view as to his preferred living arrangements [section 60CC(3)(a)]. I am satisfied that [X] has a significant level of relationship with each of his parents and with his paternal grandmother. It is less clear to me what is his level of relationship with maternal aunt and grandparents, in the absence of any evidence from them. Mr B does not seem to know [X] very well [section 60CC(3)(b)].
Although the father has many criticisms of the mother, it does seem to be the case that she has been supportive, initially at least, of [X] maintaining his relationship with his father. She has travelled to Queensland on several occasions since September of 2010 to enable [X] to spend time with his father. The last occasion was against her better judgement [section 60CC(3)(c)].
It is difficult to determine definitively what occurred in September of 2010, when the mother and [X] left [C]. However, it does not appear to be the case that the mother deceived the father about where she was going with [X]. It seems more likely that there was some ambivalence and uncertainty about what was the status of the parties’ future relationship together.
Accordingly I do not think the mother’s actions in September of 2010 can easily be categorised as a unilateral relocation of [X]. However, as time has unfolded, her intentions have become so, adding to the already unacceptable levels of tensions between the parties. I accept the father’s evidence that he has never unequivocally agreed to [X] going to live permanently in [B]. I suspect that the mother is likely to have known, well in advance, how controversial this issue was likely to be.
The father has said he will support [X] maintaining his relationship with his mother, if the court gives effect to his preferred orders. It is difficult to assess the bona fides of this statement. The father’s actions in early February of 2011 do not support his assertion.
The only outcome which will facilitate [X] being able to see each of his parents regularly, in the short to medium term, is if Ms Dafoe returns to live in [C]. She would assert that such an outcome is not reasonable feasible given the uncertainty surrounding where she would live and the highly problematic parenting relationship between her and
Mr Dafoe. At this stage, I find it difficult to disagree with her assertion in this regard.
Accordingly, whatever is the interim order in this case, it is likely to have significant implications for [X]. He is likely to be separated from interacting with one of his parents for what must be regarded as a lengthy period of time, given his age. The past few months have involved a significant level of change for [X]. This cannot be good for his ongoing sense of stability [section 60CC(3)(d)]. It is difficult, I think, for Ms Dafoe to assert that [X] is well settled in [B]. He likely to me more familiar with the environment of the former family home in [C].
On the other hand, [X] living predominantly with his father and paternal grandmother in [C] is also an arrangement which is essentially untested. The proposal envisages that Mr Dafoe would continue to work his existing roster and his responsibilities to parent [X] would be augmented by Ms D Senior. One advantage of this proposal would be that [X] would be returned to an environment with which he is very familiar but the care arrangements would be very different.
[X] may not be as familiar with [B] and the accommodation available to him there is likely to be different to what he knew in [C] but his mother’s presence is likely to provide some level of continuity in care for him. Stability, for a child, does not come from bricks and mortar alone.
It can, I think, be inferred from the father’s passive acquiescence to [X] going to [B] initially that, on at least a temporary basis, Mr Dafoe accepted the mother had a history of providing a significant level of care to [X] and he was comfortable with this situation continuing at [B], albeit that this was not to be a permanent situation.
This case raises obvious but significant logistical considerations. Although the mother seems to have been able to travel frequently between South Australia and Central Queensland, it is a very long way from [B] to [C]. [X] is a young child, who will need to be accompanied on any such journey. The travel potentially arising will be expensive notwithstanding Mr Dafoe enjoys a comfortable income, when compared to many other workers [section 60CC(3)(e)]. I am concerned that Ms Dafoe has not thought through these implications in any great detail.
It is difficult to assess the respective parental capacity of either party at this stage. Both assert that they have been the person more integrally involved in parenting [X] up to this stage. Both rely on affidavit evidence from other asserting to their respective competence. It is noteworthy that Mr Dafoe was content to allow [X] to remain in his mother’s care between September and January, albeit he thought they were likely to be returning to [C] [section 60CC(3)(f)].
It is also difficult to assess parental attitude in circumstances of such conflict and dispute. Certainly I would assess both parents as having a great love for [X]. However neither has displayed perfect judgement in how the conflict between them is to be managed and mitigated. In particular, I believe that prima facie at least, Mr Dafoe demonstrated a poor level of insight into the responsibilities of being a parent when he left [L] with [X]. He gave scant regard as to the emotional dislocation [X] was likely to sustain at being removed from his mother’s presence with little, if any, explanation or forewarning.
I am careful not to characterise his actions as absconding with [X]. However he must have known his behaviour would have caused great anguish to Ms Dafoe and would have most likely precipitated an extreme response from her, as indeed it did. In addition, I am satisfied that he went to some length to conceal [X]’s whereabouts from
Ms Dafoe, which must have intensified her anguish. The unpleasant impression I am left with is that he was content to hold [X] as a
de facto hostage. This is not good parenting [section 60CC(3)(i)]. What are the likely effects of this emotionally for [X], both in the short and longer term, are as yet unknown to me.
[X] is a very young child, not yet four years of age [section 60CC(3)(g)]. He is totally reliant on those around him to supply his needs and protect him. As such, I am very conscious of the moment of the decision which I must make, even if the decision is to be made at the interim stage and is thus accordingly capable of revision or even reversion later.
Because of his age, [X]’s relationship with his father is more vulnerable to the pressures arising from distance and separation than would confront a relationship involving an older and more developmentally mature child. These circumstances behove both a cautious approach to the relocation issue and the issue of family violence.
The mother has successfully applied for a family violence order against the father. However her application has not as yet been granted on a final basis. I am unaware of what is the father’s attitude to the granting of such an order on a permanent basis – whether he will consent to it or will wish to oppose it. In such circumstances, I am unable to give consideration to the family violence order. In addition, I am unaware as to whether or not the mother considers that such an order will sufficiently protect her in the eventuality she returns to live in [C] [section 60CC(3)(k)].
A number of matters in this case cause me disquiet. They are, essentially, the matters which caused me disquiet, when I granted the ex parte application on 8 February 2011 – the contents of Mr Dafoe’s letter of 13 January 2011; his unexplained and precipitate removal of [X] on 1 February 2011; his subsequent reluctance to engage with the mother and indicate to her where [X] was. I believe these are circumstances to which I can have regard at this stage of proceedings [section 60CC(3)(m)].
Conclusions
After having considered the various factors delineated in section 60CC, I have come to the conclusion that the presumption of equal shared parental responsibility should not be applied in this case. Firstly, I believe I have reasonable grounds to believe that Mr Dafoe has engaged in family violence, within the definition provided by the Act. He acknowledges having slapped the mother and damaged items of property.
Secondly and more relevantly, given the tense situation currently prevailing between the parties and given the controversy arising between them regarding the nature of their relationship, particularly the causes of dispute between them, I find that it would not be appropriate to apply the presumption at this interim stage.
Accordingly, I must return to my consideration of the various section 60CC factors and determine the orders which I think will be in [X]’s best interest at this stage of proceedings, bearing in mind, of course, the truncated nature of the hearing before me and the provisional and untested nature of much of the evidence so far gathered.
I bear in mind what was said by Boland J in Morgan v Miles[17] 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 Campbell and Spalding remain apt and relevant to determination of these cases.”
[17] Morgan v Miles [2007] FamCA 1230 at p.25
Campbell & Spaulding[18] was decided prior to the Family Law Amendment (Shared Parental Responsibility) Act 2006. Prior to the amending Act there was a focus on maintaining stability in arrangements for a child pending a final hearing. Accordingly, at the interim stage, the court was directed to exercise considerable caution, in respect of relocation issues, particular unilateral relocations, which occurred independently of the other parent concerned.
[18] Reported as C v S [1998] FamCA 66
In this case, there is considerable uncertainty about what precisely occurred between the parties, in late September of last year, when the mother and [X] left Queensland and what was agreed, if anything, between them, regarding the possible return of [X] and the mother to [C]. It seems to me likely that there was no great clarity about what was the mother’s position about the move on a final basis. Certainly it seems probable that she did not communicate her actual intention to the father. In this sense, there is strength to his submission that the mother’s relocation of [X] was one which occurred by stealth.
The question which arises therefore is whether there are presently such circumstances of emergency which are sufficiently serious to justify the court to authorise [X] remaining in the mother’s care in [B], notwithstanding the unilateral aspects of the mother’s relocation of the child to [B] and the implications of this relocation in respect of [X] maintaining a proper level of relationship with his father.
In my view, the decision is a finely balanced one. However, I have come to the conclusion that the issues of family violence raised by the mother, untested though they are at this stage, are sufficiently serious to justify [X] continuing to live with her in [B], where she believes both she and the child will be safe.
At this stage, I do not think that [X]’s best interests would be served by the court making an order that he live predominantly with his father and paternal grandmother in [C]. I reach this conclusion because such an outcome would represent a significant change of circumstances for [X]. I also consider that my current analysis of the applicable section 60CC factors favours Ms Dafoe as the parent better placed to provide the home in which [X] should predominantly reside and as the person who is more in tune with the responsibilities of being a parent and [X]’s emotional needs.
The next issue is whether the court should attempt to engineer a situation whereby Ms Dafoe elects to return to live in [C], so that [X]’s relationship with his father may be enhanced and supported. I have no explicit authority to compel Ms Dafoe to live anywhere. My authority is confined to issues related to [X]’s best interests.
Courts such as this one, in similar difficult situations of interim relocation, sometimes make orders that a child live with one parent in one location but if the other parent concerned elects to return to that location, the applicable child live with the returning parent, pending final hearing. The essence of such orders being that there is a return to the previous status quo in respect of at least, the geographical location in which the child concerned lives, although not necessarily previous care or actual residential arrangements.
The consequence of such an order being that the parent is presented with a choice between living alone in the location of his/her preference and living with the child who is the subject of the proceedings in the location which has been left and which clearly was unpalatable to that parent. The underpinning rationale of such orders being that the parent initially left behind was not provided with such a choice and this has distorted the level playing field which should apply to relocation decisions.
Mr Dafoe agitates for such an outcome as the second limb of his interim application. He advocates a shared care arrangement for [X] based on his seven days on/seven days off roster and predicated on the basis that Ms Dafoe returns to live in [C], with or without some form of financial assistance from him.
Given the absence of the presumption of equal shared parental responsibility, I am not specifically directed by the legislation to consider such an outcome. However such an outcome is still open to me if I consider it likely to be in [X]’s best interests.
Such an outcome is appealing to me for a number of reasons. Firstly and most obviously, it would provide [X] with the optimal means of maintaining a meaningful level of relationship with his father, which would be untrammelled by issues of distance and expense. Secondly, the court would not be seen to condoning the unilateral aspects of
Ms Dafoe’s decision to live with [X] in [B], a decision to which
Mr Dafoe has not given his clear imprimatur.
However, at the end of the day, I am concerned that such an outcome is artificial and does not reflect the reality of either [X]’s family situation or the mother’s circumstances. At this stage, the parties are in dispute as to the availability of accommodation in [C]. In addition, I am concerned that such an outcome would not address the significant issues of family violence raised by the mother, which have been instrumental in my determining that [X] should continue to live predominantly with the mother, at the interim stage.
This is a complicated case. I am not in a position to resolve the complicated issues of violence, which the mother has raised. These issues are, in the main, vehemently refuted by the father, although he has made some admission, against self interest, in his letter of mid January. However, I still have to consider how the child concerned is to be best protected from the corrosive consequences of potentially being exposed to family violence. I am not persuaded that a shared care arrangement, based in [C], would provide such protection.
Controversy exists about the nature of the relationship [X] has with his mother on the one hand and his father on the other hand. Both would categorise him/herself as being [X]’s primary provider of care. However, it seems clear that, of late, the mother has been the child's principal provider of care, with at least the father’s tacit consent. At the interim stage, I have determined that this situation should continue.
Of itself, a parent's freedom of movement may have implications for the welfare of any child concerned, particularly if that parent has been principally responsible for the child who is subject to the relocation. For obvious reasons, a parent's ability to function effectively as a parent is likely to be important to the welfare of the child concerned.
It is often said to be axiomatic that a happy parent is likely to be a more competent parent. Essentially, if the court unduly interferes with the way of life which a “custodial” parent legitimately wishes to adopt, the resulting frustration and bitterness may adversely affect the child concerned.[19]
[19] See Fragomeli & Fragomeli (1983) FLC 92-393
The only way, at present, there can be the arrangement to which
Mr Dafoe aspires is if Ms Dafoe is compelled to come back to [C], a place she assert she was driven from and where she feels unsafe. In these circumstances, I have grave reservations about the workability of such an outcome.
Ms S’s report is untested. There are also likely to be questions raised as to her expertise to provide the opinions and diagnosis which she has. It is also likely that the veracity of the history provided to Ms S by
Ms Dafoe will be challenged. However, the implication of her report is that it is likely to be psychologically detrimental for Ms Dafoe if she is compelled to return to what she (Ms Dafoe) characterises as a personally unhappy situation in Queensland.
The main detriment of Ms Dafoe’s proposal is easily stated. It will have serious implications for [X]’s ability to interact with his father and maintain a meaningful level of relationship with him. This is a particularly important consideration, given [X]’s tender years and the fact that the two must have a significant level of relationship together by dint of having shared the same household for nearly all of [X]’s life to date.
In simple terms, [X] knows he has a dad, whom he loves and is loved by in return. Ms Dafoe’s behaviour, since September of 2010, indicates her acceptance of the veracity of this situation. She has travelled to Queensland on several occasions so that [X] may spend time with his father. She was prepared to entrust [X] to Mr Dafoe, despite her concerns about his behaviour, for an extended period of time in January of this year.
However, much has changed since early February. The relationship between the parties is now very poor. The mother has raised significant concerns she has about Mr Dafoe’s behaviour since mid January. The central issue for the court, at this stage, is to balance protective concerns for [X] against the benefits he is likely to derive from spending extended and frequent periods of time in his father’s care.
One of the central issues in this case, which I am not able to resolve definitively at this stage, concerns the psychological stability of
Mr Dafoe. Mr Dafoe concedes some medical involvement with his psychological health but provides no details of it. He has indicated a willingness to undergo a psychiatric examination.
Against this background and the other concerns which she has raised, the mother is not currently prepared to countenance [X] spending time with his father in Queensland and in an unsupervised setting. For the reasons provided, I am not prepared to disregard the issues of family violence raised by Ms Dafoe, untested and denied though those allegations are. My consideration of issues to do with family violence form the centrepiece of these interim reasons for judgement.
As such, in this case, at this stage, considerations relating to family violence have assumed precedence over issues pertaining to the possible benefits [X] is likely to derive from having a meaningful level of relationship with his father. In these circumstances, in my view, it would be both illogical and contrary to the conclusions I have reached from my analysis of the relevant section 60CC factors, if I made orders that would permit [X] to spend extended periods of time in his father’s care, in Queensland, at this stage.
However, I acknowledge once again, the difficult issues this case raises regarding [X]’s entitlement to have a proper level of relationship with both his parents. These difficulties demand that the parties’ competing applications should be listed for final hearing as soon as possible. The appropriate location for this hearing appears to be Adelaide.
I will allocate a date for the trial. As discussed with each of the parties, during the interim hearing, this seems to be a case which warrants the appointment of an independent children’s lawyer and I will make an order to this effect. When appointed, the independent children’s lawyer will, I hope, be in a position to determine the appropriate form of independent expert investigation into the family concerned and examine the nature of [X]’s relationship with each of his parents and other individuals significant to his care.
For the reasons provided, I remain concerned at the implications for [X]’s wellbeing, which have been raised by Ms Dafoe, particularly concerning Mr Dafoe’s emotional stability. I appreciate it is Mr Dafoe’s position that Ms Dafoe has overstated these concerns, either consciously so that she can secure the relocation of [X] to [B] or unconsciously because of her own unstable personality. However, in all the circumstances of this case and given the structure of Part VII of the Family Law Act, I do not think it would be appropriate for the court to downplay the issues of family violence and risk possibly attaching to [X] at this stage.
In these circumstances and pending the receipt of more evidence from Mr Dafoe, particularly in the form of the psychiatric assessment he has indicated he will undertake, I do not propose to make any specific orders for the father to spend time with [X], other than the time be in South Australia. I will make specific orders for telephone communication.
These orders are necessarily of a stopgap nature. There will need to be a further examination of interim “contact” arrangements pending receipt of the further evidence foreshadowed. The parties will be granted liberty to relist the matter in respect of these issues on giving seven days written notice to the court.
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 eighty-eight (188) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 2 March 2011
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