Dansey & Dansey

[2021] FamCA 462

FAMILY COURT OF AUSTRALIA

Dansey & Dansey [2021] FamCA 462

File number(s):

SYC 3614 of 2021

Judgment of:

BERMAN J

Date of judgment:

30 June 2021

Catchwords:

FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Relocation – Interim – Where the mother unilaterally relocated the children’s residence intrastate – Where the father seeks a recovery order for the delivery up of the children – Where the mother opposes any time spending with the father –Where there are allegations of family violence – Where findings cannot be made at this stage – Where it is in the best interests of the children to maintain a meaningful relationship with the father – Where orders can be made to ameliorate any risk – Orders.  

Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 67Q

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Marvel v Marvel (2010) 43 Fam LR 348

Number of paragraphs:

79

Date of hearing:

4 June 2021

Place:

Heard in Sydney, delivered in Adelaide

Counsel for the Applicant:

Mr Barnett

Solicitor for the Applicant:

Pearson Emerson Family Lawyers

Counsel for the Respondent:

Mr Romaniuk SC

Solicitor for the Respondent:

Martin Street Lawyers

ORDERS

SYC 3614 of 2021

BETWEEN:

MR DANSEY

Applicant

AND:

MS DANSEY

Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	30 JUNE 2021

THE COURT ORDERS:

1.That the parties have equal shared parental responsibility of the children X born … 2012 and Y born … 2013 (collectively “the children”).

2.That the children live with the mother.

3.That the children spend time with the father supervised by the paternal grandparents in the week commencing 12 July 2021 as follows:

(a)From after school or 3.00 pm for a period of four (4) hours once each week and failing agreement each Wednesday from after school or 3.00 pm until 7.00 pm; and

(b)For a period of eight (8) hours each weekend and failing agreement from 9.00 am until 5.00 pm each Sunday.

4.That for the purpose of the time which the children spend with the father, the paternal grandparents shall facilitate changeover with the mother where such changeover does not take place to and from the children’s school.

5.That the parties be restrained and an injunction granted restraining each of them from:

(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party in the presence of the children;

(b)Using physical discipline on the children or either of them;

(c)Discussing the proceedings or the contents of any documents filed in the proceedings with or in the presence of the children; and

(d)Relocating the children’s residence outside of a 10 km radius of Suburb B Public School except in the event of written agreement between the parties.

6.That upon the advice of the mother that she intends to return with the children to take up residence at F Street, Suburb B, New South Wales, the father shall vacate the premises within forty eight (48) hours of such notice.

7.That the father be restrained and an injunction granted restraining him from attending or remaining in the vicinity of the mother, her place of residence and her place of employment save as may be necessary to give effect to these orders.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dansey & Dansey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BERMAN J

INTRODUCTION

1. Mr Dansey (“the father”) and Ms Dansey (“the mother”) are unable to resolve the future parenting arrangements for X born in 2012 and Y born in 2013 (collectively “the children”).

2. By Initiating Application filed 17 May 2021, the father seeks final orders that the parties have equal shared parental responsibility for the children and that the children should live with each of the parties on a shared care equal time basis.

3. In addition, the father seeks interim orders summarised as follows:

   (1)That pursuant to s 67Q of the Family Law Act 1975 (Cth) (“the Act”) a recovery order be made to enforce the delivery up of the children to the father at Suburb C Police Station, Suburb C in the State of New South Wales.

   (2)That the parties have equal shared parental responsibility for the children.

   (3)That until further order:

   (a)Contemporaneous with the children’s return to the Suburb B, New South Wales area the children live with the mother and spend time with the father, supervised by the paternal grandparents on a without admissions basis as follows:

   (i)From after school or 3.00 pm for a period of four (4) hours each week and failing agreement each Wednesday from after school or 3.00 pm until 7.00 pm; and

   (ii)For a period of eight (8) hours each weekend and failing agreement from 9.00 am to 5.00 pm each Sunday.

   (b)For the purposes of the time which the children spend with the father in accordance with these orders the paternal grandparents shall facilitate changeover with the mother where such changeovers do not take place at the children’s school.     

   (4)That the children live with each of the parents as agreed or as ordered on special occasions being Christmas, Easter, Father’s Day, Mother’s Day, children’s birthdays and each of the parties’ birthdays.

   (5)That the parties shall facilitate communication with the children at all reasonable times when in the other parent’s care, and failing agreement they shall facilitate the children calling the parent who’s care they are not in between 6.30 pm and 7.00 pm each day.

   (6)That the mother be restrained from permitting the children to be left in the care of Mr D.

   (7)That the parties be restrained from:

   (a)Denigrating each other in the presence of the children;

   (b)Using physical discipline on the children;

   (c)Discussing the content of the proceedings with or in the presence of the children; and

   (d)Relocating the children’s residence outside of a 10 km radius from Suburb B Public School except by their consent.

4. The immediate catalyst for the commencement of proceedings and in particular the interim orders sought is the father’s assertion that on 10 May 2021 the mother removed the children from the former matrimonial home at F Street Suburb B, New South Wales (“the Suburb B property”) and relocated their residence to the environs of G Town namely, H Region.

5. By Response to an Initiating Application filed 3 June 2021, the mother seeks final orders that she retain sole parental responsibility for the children and that they spend no time with the father.  The mother reserves her right to file an amended response.

6. The mother opposes the interim orders sought by the father. 

7. She seeks that she retain sole parental responsibility for the children and that no orders be made for the children to spend time with the father pending the preparation of a report pursuant to s 62G(2) of the Act.

8. In addition, the mother seeks that pursuant to s 68B of the Act, the father be restrained from entering or remaining in the broader H region of North Eastern New South Wales and in particular the mother and the children’s principal place of residence, the children’s school and the mother’s place of employment. The mother also seeks that the father be restrained from harassing, stalking, intimidating or otherwise approaching or contacting the mother and children.

9. In particular, the mother opposes the recovery order as sought by the father.

10. The interim orders also include an order for the delivery up and/or recovery of the mother’s personal belongings and effects.

11. It is understood that the parties are able to agree for the delivery up of the wife’s possessions and belongings and no order is required.

    BACKGROUND

12. The parties commenced cohabitation in or about 2007 and were married on 22 March 2008.

13. Prior to the parties’ separation, both children attended Suburb B Public School.

14. The parties are not agreed as to the extent of their respective involvement with the children.

15. The father contends that he was highly involved in the children’s day to day care and participated in their daily routine involving both curricular and extracurricular activities.

16. The mother rejects the extent of the father’s involvement with the children and contends that soon after the birth of X the father did not provide any assistance or care for her but rather was engaged in his employment, leaving home early in the morning and returning late in the evening.  Similarly, the father had little to do with Y, although the mother alleges that the father’s adverse behaviour towards Y escalated to the father becoming physically abusive.

17. The father contends that his parents played a significant role in the care of the children.  It appears that the paternal grandparents looked after the children to assist each of the parties to engage in their preferred employment.

18. The mother is critical of the father’s family and the extent to which they place the children at risk.

19. The mother considers that she has been uncomfortable leaving the children in the care of either the paternal grandparents or the father’s brother.

20. The mother lists her concerns at paragraph 68 of her affidavit filed 3 June 2021.  The concerns can be summarised as follows:

    (1)That the paternal grandfather has anger management issues in respect of disciplining children and that the mother believes that on at least one occasion the paternal grandfather has hit Y;

    (2)When four years of age Y declared that he wanted to be a vegetarian, the paternal grandparents ignored his wishes and would force him to eat meat;

    (3)That all members of the father’s family would “inflict arbitrary violence against the family dog”[1];

    (4)That the father’s brother would consume alcohol to excess, become aggressive and demonstrate aggressive behaviour towards the children; and

    (5)The father’s brother would make inappropriate comments to X such as “oh it’s lucky you’re pretty.”[2]

    [1] Affidavit of the mother filed 3 June 2021, paragraph 68(c).

    [2] Ibid, paragraph 68(e).

21. It is conceded that the paternal grandparents played a significant role in caring for the children.  The father disputes the mother’s allegations made in respect of his family.

22. The mother relocated with the children to her current premises in G Town on 10 May 2021.

23. The mother agreed that she sought advice and counselling from the New South Wales Domestic Violence line on 8 May 2021.  It is her position that following the discussion with the operator, she was advised to make plans to leave the family home but to act in way that would appear to the father to be normal.

24. On 9 May 2021, the parties and the children spent time at a local festival and under the ruse of going to a library, the mother attended a police station to seek advice as to the next step she considered necessary to protect herself and the children.

25. She left the police station dissatisfied with the lack of assistance provided.

26. On 9 May 2021, the parties entertained the paternal grandparents.  Later that day the mother again attended a police station but did not make a statement.

27. On 10 May 2021, the mother asserts that a counsellor attached to the New South Wales Domestic Violence line advised her to immediately leave the home.  The mother sought advice from her brother Mr D (“the mother’s brother”) and her solicitor Ms Prats.

28. The mother apparently followed the advice and did not return home with the children.  The mother relocated the children to a home in the environs of H Region.

29. The father last spoke to the mother at 7.30 am on 10 May 2021 at which point he confirmed with the mother that he would collect the children after school.

30. Upon the father’s arrival at the children’s school he was advised that they were not present that day.  He returned to the family home and was met by police and the mother’s lawyers.

31. It was only at that time that the father was made aware that the mother and children had departed Sydney.

32. The father subsequently became aware that the mother had relocated the children to the H Region.

33. In mid May 2021, the father was served with a provisional Apprehended Domestic Violence Order (“ADVO”).  The application is ongoing in the Suburb C Local Court.  The father opposes the ADVO and is defending the proceedings.

    INTERIM PARENTING

34. In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court considered the manner in which interim parenting proceedings should be considered where there is contested evidence as follows:-

    [120]As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.  Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing: s 61DB.

    [121]   …

    [122]In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

    [88]In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

    [123]   Later, at [100] their Honours amplified their comments and said:

    [100]The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

35. Where the contested facts relate to an assessment of risk, a greater level of caution should be exercised, however, in Deiter & Deiter [2011] FamCAFC 82 the Full Court said:-

    61.… In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

    THE LAW

36. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Pt VII of the Act namely:

    (1)The objects of this Part are to ensure that the best interests of children are being met by:

    (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

    (c)ensuring the children receive adequate and proper parenting to help them achieve their full potential; and

    (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

    (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interest):

    (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

    (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

    (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d)       parents should agree about the future parenting of their children; and

    (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

37. Section 60CA of the Act provides that the Court must have regard to the best interests of the child as the paramount consideration.

38. Section 60CC of the Act sets out the primary and additional considerations that the Court must take into account in determining what is in the best interests of a child.

39. The primary considerations as outlined in s 60CC(2) of the Act are:-

    (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

40. In applying the primary considerations as set out in s 60CC(2), the Court is to give greater weight to the considerations set out in sub-paragraph (b).

41. The father seeks that a recovery order be made to enforce the order for the mother to deliver up the children to the father.

42. The father’s position is more complex than was apparent from the interim orders originally sought.  By consent of the parties, the father seeks to amend the orders such that the children live with the mother and spend time with the father supervised by the paternal grandparents.

43. A recovery order should only be made in circumstances where it is in the children’s best interests.  It is not a stand-alone relief but rather is ancillary to a parenting order that provides for the children to spend time with the father.

44. If orders are made in terms of the mother’s interim orders sought, there would be no need for a recovery order.  The mother does not contemplate that at this stage the children would spend time with the father.

45. It is unlikely that the mother could comply with the orders now sought by the father if she continued to reside with the children in the H Region.

46. It is not permissible for a recovery order to be made simply to return to the pre-separation status quo without a consideration of what is in the children’s best interests.

    MEANINGFUL RELATIONSHIP

47. The father contends that the current circumstances of the children do not allow for a meaningful relationship to exist.

48. It is the father’s position that prior to separation he enjoyed a close emotional attachment with the children and that his relationship should be considered as valuable, important and substantial.  The mother does not consider that there is value to the father’s relationship with the children given her reliance upon allegations that the father was physically and sexually violent to her and the children and that neither the father nor any member of his family have anything positive to offer the children.

1. The allegations made by each of the parties have not been the subject of determination.  Whilst I must tread carefully in circumstances where serious allegations are made that may place a child or children at risk in the care of a party, it should not be considered as axiomatic that a meaningful relationship was not present prior to separation and would not be in the children’s best interests going forward.

2. At this stage, I consider that the intent of the legislation is to place emphasis on the benefits to a child of having a meaningful relationship with each of his or her parents.  In this case, I consider it reasonable to find that providing it is safe to do so, the children would benefit from maintaining a relationship with the father.

3. I am cognisant of the allegations made by each of the parties but I place weight on matters raised by the father leading up to the separation of the parties that at least on first consideration appear consistent with normal interaction between the father and the children.

   THE NEED TO PROTECT THE CHILDREN FROM PHYSICAL OR PSYCHOLOGICAL HARM, ABUSE, NEGLECT OR FAMILY VIOLENCE

4. Each of the parties raise serious allegations against the other which if established on the balance of probabilities would present as a risk to the children.

5. Each of the parties have filed a Notice of Child Abuse, Family Violence or Risk.  The father asserts that the children are at risk of emotional or psychological harm occasioned by the disruption caused to the children consequent upon their relocation to H Region.  The mother alleges that the father has perpetrated family violence and that the children are at risk of serious psychological harm arising from family violence perpetrated by the father upon the mother and his purported aggressive behaviour towards the children.

6. The ADVO issued in mid May 2021 is disputed by the father.

7. Furthermore, the father denies each and every allegation of the mother.  Her counsel argues that there are significant inconsistencies arising from the mother’s interaction with the father prior to separation and the extent of his involvement with the children when considered against the serious allegations made by the mother that she was the subject of ongoing sexual assault and that the father’s overt aggressive behaviour placed the children at risk.

8. I am not able to make a finding as to the veracity of the allegations made by the mother and the weight that should be given to the father’s denials.

9. It is appropriate to err on the side of caution even though such a course does not necessarily satisfy either or both of the parties.  The focus must be steadfastly anchored by a consideration of the children’s best interests.

10. I do not consider that the weight of evidence in terms of the mother’s allegations pertaining to the father’s conduct in and of themselves speak against a parenting order that would bring the children and the father into physical contact.  Any order made however, should endeavour to ameliorate any perceived risk.

    WISHES OF THE CHILDREN

11. The parties are in dispute as to what weight should be given to any wish expressed by either of the children. 

12. The father contends that he had a strong and appropriate relationship with the children prior to separation.  The mother contends that the children have made it clear to her that they fear the father and are worried for their safety and that of the mother.

13. At this stage, I am not able to assess the extent of the weight that should be given to the children’s wishes.  Some assistance will be provided by the undertaking of a s 11F appointment but at this stage I do not consider that the wishes of the children should be given such weight that they speak in favour of the children spending no time or being able to communicate with the father.

    THE LIKELY EFFECT OF ANY CHANGE IN THE CHILDREN’S CIRCUMSTANCES

14. The removal of the children from Sydney to G Town has been dramatic.  The children attended the Suburb B Public School and have now been enrolled in a primary school in the H Region.

15. I find that the children spent time with the father even if the mother’s position as to his minimal involvement is ultimately borne out.

16. Moreover, the children had a relationship with the father’s family and in particular the paternal grandparents.

17. Whatever may have been the mother’s misgivings about the paternal grandparents, it is not contested that their involvement with the children was significant and on occasion spontaneous as highlighted by their attendance to take the children to school on 10 May 2021.

18. There is no explanation by the mother why a move to H Region was warranted in circumstances where there may well have been options for the children to remain living within the Sydney metropolitan area.

19. I accept that the mother has family in G Town and whilst that may have been attractive to provide some comfort and support to the mother, it is reasonable for the mother to have expected that her actions in relocating with the children would be opposed by the father.

20. I am obliged to consider the separate proposals of the parties.  It is appropriate for the mother to put forward her parenting proposal based upon the children living with her in the H Region and in close proximity to her family.  Equally, it is open for the father to promote the children spending time with him in Sydney.

    FAMILY VIOLENCE

21. I bring to account the allegations made by the mother in respect of the father being the perpetrator of family violence.   As discussed, I am not able to make a finding and at this stage consider that the father’s rejection of the allegations are as open to a finding as are the mother’s allegations of sexual assault and family violence perpetrated by the father.

    CONCLUSION

22. I find that it is in the best interests of the children that they maintain a meaningful relationship with the father.  Further, I consider that an order should be made which restores the children spending time with the father but in circumstances where the Court can be satisfied the risk to the children is ameliorated.

23. I have given careful consideration to the potential disruption to the mother but in particular the children of yet again another significant move, namely from the H Region back to Sydney.

24. The father proposes to vacate the Suburb B property upon the mother and children returning to Sydney.

25. I consider that this is a significant factor in lessening the disruption to the children of leaving H Region.  The children have only been in their current circumstances for a little more than a month and it could not be said that they are settled either in terms of their school or living circumstances and environment.

26. The children are able to return to Suburb B Public School and resume their education and peer relationships with little further disruption.

27. The mother has held highly skilled employment in Sydney and has the capacity to obtain appropriate remuneration, particularly if she is able to return to the Suburb B property.

28. For those reasons I consider that the orders sought by the father that the children spend time with him, supervised by the paternal grandparents, are in the best interests of the children and should be promoted.

29. I do not propose to put in place a recovery order.  There is no indication that the mother does not intend to comply with orders made.

30. It is reasonable that the mother have an opportunity to return the children to Sydney during the upcoming New South Wales school holidays thereby enabling the children to resume third term at Suburb B Public School.

31. I make orders as appear at the commencement of these reasons.

I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.

Associate:

Dated:       30 June 2021