Deiter & Deiter
[2011] FamCAFC 82
•12 April 2011 22 October 2010 (date of orders)
FAMILY COURT OF AUSTRALIA
| DEITER & DEITER | [2011] FamCAFC 82 |
| FAMILY LAW - APPEAL – CHILDREN – RELOCATION – Where an interim parenting order was made requiring the mother to return the children to Sydney – Whether the Acting Magistrate failed to give sufficient weight to the allegations of family violence – Discussion of weight to be given to disputed allegations of family violence at interim hearings – Having regard to the undisputed evidence, the Acting Magistrate should have placed more weight on the mother’s allegations – Whether the Acting Magistrate failed to give proper consideration to the father’s ability to relocate – His Honour erred in not considering whether the father could move to Perth – Whether the Acting Magistrate erred in finding that the benefits associated with the children remaining in Perth pending trial were outweighed by the adverse effect on them of further separation from their father – The Acting Magistrate failed to consider the likely duration of the interim arrangement – Too much weight was given to the father having a meaningful relationship with the children pending a final hearing – Matter remitted to the Magistrates Court of Western Australia with a request for an expedited hearing – No order for costs in relation to the appeal – Costs certificates granted to both parties for the appeal and the rehearing |
| Family Law Act 1975 (Cth) |
| Cowling v Cowling (1998) FLC 92-801 Goode and Goode (2006) FLC 93-286 Jamal & Maalouf [2008] FMCAfam 1406 Morgan and Miles (2007) FLC 93-343 MRR v GR (2010) 240 CLR 461 |
| APPELLANT: | Ms Deiter |
| RESPONDENT: | Mr Deiter |
| FILE NUMBER: | PTW | 1106 | of | 2010 |
| APPEAL NUMBER: | WA | 13 | of | 2010 |
| DATE DELIVERED: | 12 April 2011 22 October 2010 (date of orders) |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Finn, Thackray and Strickland JJ |
| HEARING DATE: | 22 October 2010 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 21 July 2010 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Supljeglav |
| SOLICITOR FOR THE APPELLANT: | DS Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Battley |
| SOLICITOR FOR THE RESPONDENT: | Marc Anthony Lawyers |
Orders
That the appeal against the orders made by Acting
RegistrarMagistrate Kaeser on 21 July 2010 be allowed.That the orders be set aside.
That the application filed by the mother on 3 March 2010 be remitted to the Magistrates Court of Western Australia, with a request for an expedited hearing.
That there be no order in relation to the costs of the appeal
That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.
That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by him in relation to the appeal.
That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by the orders of 22 October 2010.
Amended pursuant to Rule 17.02 of the Family Law Rules 2004 by:-
In paragraph 1, line 1, deleting the word “Registrar” and in lieu thereof inserting the word “Magistrate”.
IT IS NOTED that publication of this judgment under the pseudonym Deiter & Deiter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: WA 13 of 2010
File Number: PTW 1106 of 2010
| Ms Deiter |
Appellant
And
| Mr Deiter |
Respondent
REASONS FOR JUDGMENT
The mother and father lived with their three young children in Sydney. Following the parents’ separation, the mother took the children to live with her family in Perth.
Six months later, Acting Magistrate Kaeser of the Magistrates Court of Western Australia ordered the mother to return the children to Sydney and live there until the final hearing. He also transferred the proceedings to Sydney.
After hearing argument, we allowed the mother’s appeal against the orders and remitted the matter to the Magistrates Court of Western Australia. We now publish our reasons.
Background
The mother is 24 and the father is 26. Neither has paid employment, although the father has been receiving workers’ compensation for many years.
The mother and father married in 2008 and separated in January 2010. Their children were aged 5, 3 and 1 at the time of the hearing in May 2010.
The mother had lived with her family in Perth until 2003, apart from a few years they spent in Canberra. In 2003, the mother left school when she was 17 and moved to Sydney to continue a relationship she had commenced with the father.
The mother, father and children stayed with the mother’s family in Perth over Christmas 2009. They returned to Sydney on 14 January 2010. On the day of their return, the parents had an argument, ending in violence. The children witnessed what happened.
The mother immediately went to the police, who applied for an apprehended domestic violence order on her behalf. An interim order was granted on 2 February 2010 (“the AVO”) and the father was charged with assault.
On 20 January 2010, the mother took the children back to Perth. Thereafter, the father sent her numerous text messages, which Kaeser AM described as “innocuous to strange, loving, pleading and threatening”.
The mother commenced the present proceedings in Western Australia on 3 March 2010. The father filed his response on 1 April 2010.
On 6 April 2010, a consent order was made allowing the father daily telephone communication with the children. He was also given leave to issue subpoenas for production of police records from New South Wales (which he failed to issue). The proceedings were adjourned for interim hearing on 28 May 2010.
The father and his counsel flew to Perth for the hearing. Having refused the mother’s adjournment application, the Acting Magistrate heard submissions from counsel, before reserving his decision. There was no cross-examination.
On 3 June 2010, while the decision was still reserved, and before final written submissions were filed, the mother’s solicitors wrote to the Court seeking permission to issue subpoenas for production of police records. The Acting Magistrate refused the request.
Judgment was delivered on 21 July 2010. The orders, which were the subject of this appeal, were as follows:
1. The children … live with the [mother] in Sydney.
2.The [mother] have a period of 28 days from the date of these orders to relocate the said children to Sydney.
3.These proceedings otherwise be transferred to the Federal Magistrates Court in Sydney, with the proceedings to be listed for hearing at the first available opportunity.
The mother filed a Notice of Appeal on 6 August 2010 appealing all orders.
The Acting Magistrate’s reasons
Kaeser AM recorded the issues for determination as follows:
4.The transcript of the proceedings on 6 April 2010 before the presiding Magistrate made it clear that the only issues to be determined at the hearing before me were the relocation and the transfer of venue. Any further orders in relation to the children’s time would be determined later, and be done either by the court here or in Sydney depending on the outcome. The parties’ affidavit evidence was to be limited to those 2 topics only.
His Honour had been the presiding Magistrate at the hearing on 6 April 2010. Although no objection was taken to his limitation of the issues, it seems surprising that the decision concerning the return of the children to Sydney was to be made independently of the decision about the time they would spend with their father if they did return. We say this because at the time the consent orders were made on 6 April 2010, the mother was proposing that the father spend no time with the children (save such time as she might allow, and provided it was supervised).
In any event, the mother’s position changed at the hearing on 28 May 2010. Kaeser AM described the change as “interesting”. He recorded that the mother now proposed that the father spend three days with the children in Sydney in June 2010 (which was when the mother was scheduled to give evidence in proceedings concerning the January 2010 incident). In addition, the mother proposed that the father have four periods of five days with the children in Perth in July 2010, October 2010 and January 2011 (to include two or three overnights, commencing in October 2010).
The mother’s amended proposals were set out in a Minute which was tendered during the hearing, but which was not included in the Appeal Book. Although his Honour did not say so, the proposals involved all handovers being facilitated by members of the mother’s family. (Transcript 28 May 2010, p 32)
Kaeser AM commented about these proposals as follows:
12.This minute may well have been filed to show that the Mother was prepared to encourage an ongoing relationship with the Father. It does however remove all aspects of supervision, which the Mother initially claimed was necessary. That was predominantly due to allegations of domestic violence. I must now carefully consider the Mother’s allegations in light of her current proposals.
His Honour recorded that the father wanted the two older children to live with him each week from Friday morning to Sunday afternoon, and that he wanted to spend three hours with the youngest child on three days a week. We observe that his proposed regime would have necessitated eight handovers every week.
His Honour then referred to the evidence concerning the altercation in January 2010. He said the father’s version was that the mother slapped and punched him, and had “physically kicked [him] out of the car”, before driving off. The mother’s version was the “exact opposite”, with her claiming that the father had punched her in the face, and that her face was “red and swollen and was burning and [her] eye was red and watery”.
The Acting Magistrate then observed there was “no independent evidence from either party about this incident”, although he recorded that the mother had reported it to the police and applied for an apprehended violence order on the day it occurred. He also recorded that the father had been charged with assault, but was pleading “not guilty”.
The Acting Magistrate said it appeared the parties separated soon after the incident. He did not refer to the mother’s evidence that she had been “too scared to go home” after she reported the alleged assault, and had therefore stayed in a “secured apartment” until she left for Perth. He also did not refer to the mother’s evidence that she had met the father at the home of a mutual friend on the day she left Sydney and told him she was returning to Perth “to clear [her] head”.
His Honour next recorded that the mother had provided a list of the “vast number” of text messages the father had sent to her in Perth. Having described these as ranging from “innocuous to strange, loving, pleading and threatening”, his Honour commented, “the Father of course says he was devastated by the Mother’s decision to go to Perth”.
The Acting Magistrate also recorded, in paragraph 23 of his reasons, the mother’s claim that after she had obtained the AVO, the father had been “continually harassing me with messages and phoning both my mobile and my brother’s house”. His Honour commented, “one wonders why, if this was the case, that the Mother did not report these incidents to the Police as breaches of the apprehended violence order”.
His Honour then embarked on a lengthy consideration of cases dealing with relocation disputes. One of these was the judgment of Brown FM in Jamal & Maalouf [2008] FMCAfam 1406 (“Jamal”), which his Honour described as being “remarkably similar to this matter in a number of key respects”. He went on to say that whilst the “principles of law” enunciated by Brown FM in Jamal were not binding, they were “persuasive”.
His Honour then recited parts of the Jamal judgment. These do not seem to state any principles of law, but instead highlight the dilemma faced by judicial officers when conducting interim hearings involving contested allegations of violence. At paragraph 3 of the judgment, Brown FM observed that a father, faced with “general and non-specific” allegations of violence, will often point to:
… the lack of compelling and independent evidence corroborating the mother’s claims against him, particularly that there are no documents available to the court, such as domestic violence orders; police reports; or medical reports detailing injuries received. …
In the passages recited, Brown FM also posed a number of rhetorical questions which he saw arising in such cases, with the final one being:
Centrally, how does the court balance the two most important legislative considerations relating to the best interests of the children, at the interim stage, namely the need to protect them from being exposed to family violence and the benefits of them having a meaningful relationship with not one but both of their parents.
Although noting what he saw as remarkable similarities with Jamal, Kaeser AM did not make mention of the fact that in Jamal the order for the return of the children to their original place of residence was made less than eight weeks after the removal. In any event, having next referred to the High Court decision in MRR v GR (2010) 240 CLR 461, his Honour continued:
45.The issues to be determined today are interim matters. The Court has some limits on its ability to determine factual issues on an interim basis. There is no opportunity to test the evidence of the parties by cross examination. I cannot make findings of fact where the evidence is in dispute. As the Full Court in Goode & Goode indicated (at paragraph 81), in making interim decisions the Court will often be faced with conflicting facts, little helpful evidence and disputes between parents as to what constitutes the best interests of the child. Nevertheless, the legislative pathway set out [sic] the Act must be followed. That requires me to take into account a multitude of factors and considerations.
His Honour next observed that the present case did not involve a proposal to relocate, but was a case where the relocation had already occurred. He added that the parties had “not genuinely attempted to resolve the dispute”. In making these observations, his Honour was clearly referring to a passage he had earlier cited from Morgan and Miles (2007) FLC 93-343 in which Boland J had proposed a checklist of matters to be taken into account when a parent is proposing to relocate with a child. The first item in the list suggested that the court “must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute”.
Kaeser AM went on to recite s 60B of the Family Law Act 1975 (Cth) (“the Act”), which relevantly provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; …
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
…
(d) parents should agree about the future parenting of their children; …
His Honour next recited the “primary considerations” in s 60CC(2), which must be taken into account when determining a child’s best interests, namely:
(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.
Having discussed the meaning of the expression “meaningful relationship”, his Honour said:
52.There is no doubt that these children would benefit from having a meaningful relationship with both of their parents. That is unlikely to occur if the parties live on opposite sides of the country.
His Honour then turned to the “primary consideration” in s 60CC(2)(b). His findings concerning this are important, and we therefore recite them in full:
53.The Mother says there were incidents of domestic violence approximately every day. She says that the Father has threatened to kill her; has repeatedly slapped and punched her; and has verbally abused her.
54.She also says the children have been exposed to this family violence on many occasions.
55.She says the Father has lost his licence “a number of times” for speeding. She also says that during the relationship he often went out most of the night and regularly slept in until at least 1.00pm.
56.The Father denies these claims. It is simply not possible to determine their accuracy on an interim basis.
57.The Mother’s proposed orders do not provide for supervision. She clearly no longer considers the children need to be protected from exposure to family violence. Perhaps that is a concession that away from the relationship, the Father is not likely to expose the children to such conduct.
58.In my view, given the Mother’s approach and my view of the evidence, it is not necessary to make orders to protect these children from neglect, abuse or family violence.
His Honour then discussed the “additional considerations” in s 60CC(3). In doing so, he:
·found that “the children clearly have a good relationship with the Mother and the Father”;
·found that the amendments the mother had made to the orders she was seeking “may indicate a willingness to facilitate the ongoing relationship between the Father and the children”;
·noted that he must consider whether “orders should be made such that the Father moves to Perth and maintain a relationship with the children here”;
·found that, given their ages, it is possible the children may forget their father between visits if their time with him was “restricted to periodic visits with a significant gap between each”;
·noted as a “significant factor” that the mother had said she would have to live in a refuge in Sydney, given her limited means;
·found to be an exaggeration the mother’s claim she had no friends in Sydney (since she had lived there for some years);
·accepted that the mother had “significant family support in Perth that she simply does not have in Sydney”;
·found that the children “appear to have settled into a new routine and family life in Perth”;
·found that the mother “clearly is more settled and secure and happy in Perth”, which he noted “must have a positive effect on the children”;
·expressed his opinion that the mother would “struggle to cope with the situation”, which he considered “may well have an adverse effect on the children”; and
·noted that if they stayed in Perth, and the father remained in Sydney, the children would spend very little time with the father.
Paragraphs 77 and 78 of his Honour’s reasons are particularly important. We will recite them in full:
77.So an option (as canvassed earlier) is for the Father to move to Perth. In my view, I do not have the power to force him to move. I must however make orders I consider in the best interests of the children. If that involved spending regular time with the Father but the children were to remain in Perth, the Father would have a significant decision to make.
78.Upon carefully weighing all of these issues, I find that the most important effect upon the children is the absence of regular time with the Father. The Father, in my view, is unlikely to move to Perth. On an interim basis therefore, the likely benefit in maintaining the current circumstances (and therefore increase the stability of the Mother) is outweighed by the adverse effect on the children of further separation from the Father.
In dealing with the s 60CC(3) factor concerning the capacity of each parent to provide for the children’s needs, including their emotional needs, his Honour simply said, “I have no concerns in relation to either party”.
Turning to the factor relating to the parents’ attitudes to the children and to the responsibilities of parenthood, his Honour found “as far as I can determine on an interim basis, the parties have generally adopted an appropriate approach to parenting”.
In discussing the factor relating to family violence, his Honour found:
81.This is an issue given that both parties say that on the day of separation there was a physical altercation between them. Each says the other was the perpetrator. I find that family violence did occur on this occasion. As I have said though, I cannot conclude who was responsible nor can I make any conclusions about the other incidents claimed by the Mother and denied by the Father.
His Honour also observed that the AVO was “an interim order only and has not yet been contested at a final hearing”.
Having discussed issues relating to allocation of parental responsibility, which need not concern us, his Honour set out his conclusions by saying:
93.As Brown FM found in Jamal (supra), I also cannot be satisfied that “the circumstances outlined by the Mother, which are vehemently refuted by the Father, create such a situation of emergency to justify the 3 young children concerned (living) in another state far away from their father and the ability to interact with him at a sufficient level to be beneficial to them, particularly given their respective ages and level of cognitive maturity”.
94.In my view, the children should remain living with the Mother, but they should be returned to Sydney. I need not determine the issue of what time the Father should spend with the children. That will depend on the circumstances that exist once the children have been returned to Sydney.
95.On the basis that my orders will provide for the children to return to Sydney, it is appropriate to transfer the proceedings to the Federal Magistrates Court.
The Grounds of Appeal
The Grounds of Appeal, as amended, were in the following terms:
1.That his Honour erred in failing to provide adequate and cogent reasons for his decision.
2.That his Honour erred in failing to give proper consideration to the father’s ability to relocate to Perth.
3.That his Honour erred in attaching excessive weight to the effect of the separation of the children from the father as opposed to the effect on the children in light of the mother’s unsatisfactory circumstances.
4.That his Honour erred in giving insufficient weight to the need to protect the children from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence pursuant to s.60CC(2)(b) of the Family Law Act.
5.That his Honour gave insufficient weight to the mother’s allegations of family violence;
6.That his Honour erred in determining the issue of the children’s residence on the basis of the unsatisfactory evidence before him;
7.That his Honour erred in refusing to allow the mother to issue Subpoenae in relation to the allegations of family violence;
8.That his Honour erred in refusing to afford the mother procedural fairness; and
9.That his Honour gave insufficient weight to the financial implications and short‑term immediate realties [sic] for the mother of his orders, and the impact of these upon the welfare of the children.
Counsel for the mother provided written submissions addressing each ground, but in his oral argument he grouped the complaints into three categories.
The first category comprised what were described as “procedural fairness issues”. These focussed on the Acting Magistrate’s refusal of the adjournment and his denial of permission to the mother to issue subpoenas.
The other complaints in the other two categories addressed:
·the findings concerning the exposure of the children to family violence;
·the alleged failure to consider the father’s ability to relocate to Perth;
·the priority given to the children having a “meaningful relationship” with the father; and
·the alleged failure to consider the practical considerations associated with the mother’s return to Sydney.
As we found merit in the complaints about the substantive issues, we will not address the first group of complaints regarding procedural fairness. However, before addressing the substantive matters, we will discuss what we see as an important issue concerning the context in which the matter was determined.
Making an interim order without regard to its likely duration
We have commented already on the decision to separate the issue concerning the return of the children to Sydney from the issue concerning the time they would spend with the father if they were returned. Although Kaeser AM had decided to deal with the matter on this basis, he sensibly gave consideration to the time the children should ideally spend with the father. He concluded it was not in their interests to spend as little time together as the mother had proposed.
We will consider later whether it was open to his Honour to form the view he did about the time the children should ideally spend with the father. Assuming he was right to form that view, we consider his Honour should next have considered for how long the children would be denied this ideal arrangement if they stayed living in Perth. This was an important consideration, given the many findings which pointed to their interests being advanced by remaining in Perth pending the final hearing. These included that:
·the children appeared to have settled into their new routine in Perth (which although not mentioned by his Honour, included the oldest child being half way through his first year of schooling);
·the mother was clearly more settled and secure and happy in Perth, which must have “a positive effect on the children”; and
·the mother would “struggle to cope with the situation” if she was to return to Sydney, which “may well have an adverse effect on the children”.
In our view, these factors could only be properly weighed by having regard to the likely duration of the interim arrangement. By the time the judgment was delivered, the children had already been in Perth for six months, and had not had any contact with their father, other than by telephone. His Honour nevertheless found the children enjoyed a “good relationship” with their father.
In these circumstances, we are of the view that consideration should have been given to the likely delay in setting the matter down for a final hearing in either Perth or Sydney, including the prospects of an expedited final hearing. Given the advantages his Honour identified as being associated with the children remaining in Perth, the outcome might well have been different if the final hearing could be brought on without great delay.
We accept there was no evidence, and no submissions, about how soon the matter could have been given a final hearing date. We do note, however, that counsel for the mother had expressed her hope that the matter could be expedited. She did this when explaining to his Honour why the mother’s proposals did not extend past the 2010/2011 summer holidays.
Although there was no evidence concerning the likely wait for a hearing in either Perth or Sydney, the obligations imposed on judicial officers by s 60K of the Act should have been kept in mind. Section 60K obliges the Court to consider making orders to ensure that allegations of family violence are dealt with as “expeditiously as possible”. We recognise that s 60K was not invoked, since its provisions are triggered only on the filing of a Form 4 Notice of Child Abuse or Family Violence. However, the filing of a Form 4 is compulsory when a party makes an allegation of family violence (see Rule 2.04B of the Family Law Rules 2004), and his Honour had been informed that one of the reasons the mother wanted an adjournment was to allow her legal representatives to file a Form 4.
Section 60K signals a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously. In our view, regardless of whether s 60K has been activated, it is unsatisfactory for a judicial officer to recognise the difficulty in determining the accuracy of disputed allegations of violence, without also giving consideration to dealing with those allegations as a discrete issue or expediting the final hearing.
We appreciate his Honour may have felt constrained in making directions about expedition in another court. Although we note he did order that the matter be listed in Sydney at the “first available opportunity”, we take that to be a listing of the balance of the interim application, which he had decided not to determine. No consideration appears to have been given to conducting a discrete hearing to deal with the allegations of violence before determining the application for the return of the children or the secondary issue concerning the venue of the final hearing.
Rule 11.18 provides a list of factors the Court may take into account in dealing with an application for a transfer of proceedings. These include whether an earlier hearing can be provided in one of the venues. As neither party had provided any evidence about this, and as his Honour had not directed them to do so, we consider the decision to require the mother to live in Sydney pending a trial in Sydney was made in the absence of important context.
There was no specific ground of appeal directed to his Honour’s failure to have regard to the waiting time for a final hearing. Nevertheless, in assessing the merit in the complaints that have been made, we consider it important to acknowledge that the decision was made without evidence of the likely duration of the arrangement. This will be important in considering matters associated with the practicality of the mother returning to Sydney, and what his Honour found to be the possible adverse effect on the children as a result of her having to live in a city where she would “struggle to cope”.
Exposure of children to family violence
The mother complains that the Acting Magistrate gave insufficient weight to her allegations of family violence and to the need to protect the children from physical and psychological harm from being exposed to family violence.
We have earlier set out those parts of his Honour’s reasons which dealt with the mother’s evidence concerning the father’s violence. His Honour decided that, because the allegations were “vehemently refuted”, it was impossible to make any finding concerning their veracity. Given that the parties’ accounts were in such stark contrast, and given there had been no cross-examination, we accept it was not possible to make a conclusive finding.
Notwithstanding that, we are nevertheless of the view that his Honour should have placed much more weight than he ultimately did on the mother’s evidence. In our view, his Honour needed to do this in order to attempt to assess the risks to the mother and children if the mother was required to take up residence in closer proximity to the father (and placed in a position where potentially she had to facilitate eight handovers every week).
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. 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.
We are aware that in Goode and Goode (2006) FLC 93-286 the Full Court referred with some approval to the following statement made in Cowling v Cowling (1998) FLC 92-801 (our emphasis added):
18. The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the Court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties' respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.
In our view, the proposition contained in the final sentence of the quotation is most important. In any event, in Goode and Goode, the Full Court said:
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.
We accept that the Acting Magistrate could make no definitive prediction of the likelihood of the father behaving violently toward the mother or others in the future. That would be hard enough in circumstances where findings could be made about what had occurred in the past. However, his Honour should have been alert to the potential consequences for the mother and children in the event the father was to behave violently pending a final hearing – including by carrying out the threats to kill which the mother claimed he had made in the past.
One of these alleged threats was recent. The mother claimed that the father had told her during their visit to Perth shortly before the separation that if she ever left him, he would kill her. These alleged threats stood to be assessed in the context of the mother’s allegations about the father, for example, having:
·kicked her, including in the ribs whilst she was pregnant;
·punched her in the jaw;
·slapped her in the face at a wedding; and
·abused her, both in public and private, calling her names such as “fat cow”, “fat bitch”, “ganger”* and “cunt”. (*the mother said “ganger” is “Sydney slang” for “slut” – Appeal Book 110)
In considering the risk, his Honour ought to have had regard to a combination of factors emerging from the evidence, which we consider should have led him to conclude there was a need to act cautiously.
Whilst the father claims the mother instigated the violence, it is not in dispute that the parties were involved in a physical altercation on the day they separated. It is also not in dispute that the mother immediately reported the matter to the police; sought an AVO; left the family home and took up residence elsewhere.
Although his Honour found “remarkable” similarities with the scenario Brown FM had described in Jamal, the present case was not one where there were “no documents available to the court, such as domestic violence orders; police reports; or medical reports detailing injuries received”. There was a domestic violence order (albeit interim and obtained ex parte). There was a report to the police, which had been acted upon (albeit the father was pleading “not guilty”).
It is true there were no medical reports, but the mother had not said she had sought medical attention. In this regard, we observe that the father had failed to obtain the police records he initially proposed to have produced under subpoena. The mother’s counsel informed his Honour that she was instructed those records would contain a photograph of the mother’s injuries; however the Acting Magistrate refused the mother’s subsequent request for permission to issue a subpoena for the production of the police records.
The mother had also provided affidavits of witnesses, which contained significant corroboration of her allegations. Kaeser AM made no mention of these in his reasons. In particular, no reference was made to the affidavit of Ms B filed 29 April 2010 who said that she had lived with the family in Sydney for three months and thereafter had kept in regular contact with the mother.
Although the father said in his affidavit affirmed 19 May 2010 that Ms B had only stayed with them for seven days; had thereafter visited on less than five occasions; and was no more than an “acquaintance of the mother”, he nevertheless volunteered:
52.It is evident that I have totally misjudged [Ms B] to the point where I thought she would provide me with an affidavit in this matter. I did telephone [Ms B] and asked her for an Affidavit. I was surprised with her refusal as am [sic] surprised with her affidavit in this matter. I was not aggressive towards her or threatening in any way or form.
Whilst we accept that Ms B’s evidence had not been tested, in giving consideration to the risks involved, we consider some weight should have been placed on evidence given by a witness who the father himself thought sufficiently reliable to approach to provide an affidavit (assuming he contacted her for this purpose, rather than to warn her against providing an affidavit for the mother, as was claimed).
We propose to set out all of Ms B’s affidavit, notwithstanding the deficiencies in form and its reliance on hearsay, since it has relevance not only to the issue of violence, but also to other findings which we will discuss below. (The numbering and typographical/grammatical errors were in the original.)
1.I am close friend of the applicant mother and the children subject to these proceedings … and I make this affidavit in support of the applicant mother’s Form 2 application for re‑location
Background
2.I met [the mother] (“the applicant”) in 2005 and attended high school with [the father] (“the respondent”).
3.In 2007, I moved out of my parents’ house and moved in with the applicant, respondent and the children at … for approximately 3 months because I was looking for my own place to live.
4.In January 2009 I moved from Sydney to country NSW be with my family and have kept in contact with the applicant and her children.
5.I would visit the applicant whenever I could get to Sydney which was usually once per month.
6.Approximately 3 to 4 times per week since I have known the applicant, she would call me crying about the way the respondent had treated her.
7.The applicant also told me on numerous occasions that the respondent was violent towards her.
8.Approximately once per month, the applicant would leave her house with the children because she told me she felt safe at my house.
When I lived with the applicant in 2007
1.For the 3 months that I lived with the applicant, respondent and the children I heard the respondent call the applicant names and swear at her nearly every day. He would call her ‘a fat bitch’, ‘a fucking bitch’, ‘run up and down the stairs to lose weight’, ‘you’re worthless’, ‘you’re nothing’, ‘you’re a pathetic cook’. (“comments”)
2.The respondent would make these comments in front of the children.
3.I have heard the respondent say to the children, ‘isn’t mummy stupid?’ and ‘isn’t mummy fat?’
4.The comments would usually start when dinner was not cooked on time, if a dish the applicant prepared for the respondent was not sufficient enough or if the children were talking to him when he was watching television.
5.The respondent would make comments about the applicant if she objected to him going out fishing rather than spending time with the children.
6.The applicant told me about the physical abuse that he had done to her when I was not in the house, such as hitting, punching and pulling her hair.
7.The respondent would always look for an excuse to leave the house. He would go fishing or play cards at his friends’ house.
8.The applicant and the children would eat a nice home cooked meal but the respondent would often not eat with the family and demand that the applicant take the children and go to the local supermarket to buy him something different.
9.If the applicant refused to go to the supermarket to buy something different, the respondent would yell and scream at her.
The respondent’s relationship with the children
10.The respondent would not want to take the applicant and the children to the parks as he was not interested in doing family activities. As a result of this, the applicant would cry to me and tell me she really wanted to do family activities and the respondent usually refused.
11.On numerous occasions the applicant and I could not get into contact with the respondent. The respondent would not answer his phone or he would turn it off. When [the eldest child] was approximately 9 months old, the applicant and I went to look for the respondent late in the evening because he had not come home. The applicant and I found him at the [club] gambling in the poker machines.
The applicant’s relationship with the children
12.I have seen the applicant feed, bath and cloth the children and put them to sleep.
13.I have seen the respondent get extremely frustrated with the children. For example if they were playing with their toys and he thought the children were too loud, he would scream to the applicant to get the children to be quiet.
14.Approximately 2‑3 times per week I saw the respondent pretend to hit the applicant in front of [the eldest child]. I could see that this made [the eldest child] very upset. I heard him cry and tell the respondent to “leave mummy alone”.
Reasons for relocation
15.I am the applicant’s only friend in Sydney and I now live in country NSW.
16. She has no family support in Sydney.
17.On some occasions when the applicant and respondent were having an argument, the respondent would threaten to take the children away from her and say, “You know that if you leave me I will take the children off you. My family have money.”
18.On the 9 April 2010, I received a phone call from the respondent. During this phone call, the respondent told me not to write an affidavit for the applicant.
19.I felt threatened by this phone call, as he spoke to me in a very passive aggressive tone.
The mother’s parents also provided affidavits. Whilst it might be expected they would be partisan, they did corroborate the evidence of Ms B about the way the father verbally abused the mother. The maternal grandmother also gave evidence of seeing the father shove the mother during the course of an argument whilst they were visiting in Perth in January 2010.
The mother’s sister gave evidence of similar abuse. She also claimed that in January 2010 the eldest child had said to her, “mummy is sad because daddy hit her in the eye and made it all red”. She claimed to have heard the child tell other relatives on other occasions “we’re in Perth because daddy hit mummy in the eye and made it all red”.
We acknowledge that not only did the father deny these allegations, but that he also provided affidavits from a neighbour of his parents and a “very close friend” of his sister, both of whom claimed not to have seen or heard anything of the nature alleged by the mother’s family and by Ms B.
Faced with these inconsistencies, there is no doubt his Honour needed to deal with the untested evidence very carefully. However, in our view, it was not open to him just to ignore it, merely because it had not been tested. In our view, the untested evidence should have been considered in light of the uncontested evidence – and the uncontested evidence should itself have been given more weight than it appears to have been given.
We have in mind in particular the “vast number” of text messages which his Honour found had been sent by the father to the mother after the separation. The fact that some of these messages were “strange” and some “threatening” ought to have provided reason for concern. Instead, his Honour’s only comment about them was that contained in paragraph 22 of his reasons, where he observed, “the Father of course says he was devastated by the Mother’s decision to go to Perth”.
That may be true, but the mother’s allegations about the father’s behaviour were not restricted to what had occurred after she had gone home to Perth. In our view, rather than seeking to look for a possible explanation of the father’s conduct, his Honour should have seen that the father’s post-separation behaviour was consistent with the earlier conduct described by the mother. Examination of the text messages would also have revealed that the father had informed the mother he had made enquiries about seeing a psychiatrist and undertaking anger management classes. The messages also expressed the father’s own fear that he would commit suicide.
Surprisingly, his Honour appeared to cast doubt on the mother’s allegations about the text messages when, in paragraph 23 of his reasons, he said:
23.The Mother says that “since obtaining the AVO the (Father) has been continually harassing me with messages and phoning both my mobile and my brother’s house”. One wonders why, if this was the case, that the Mother did not report these incidents to the Police as breaches of the apprehended violence order.
The rhetorical question his Honour posed might be seen as suggesting that the mother may have made up her allegations. It is difficult to reconcile this with his finding that the father had indeed sent the mother a “vast number” of text messages, including some which were “threatening”. Prima facie, such behaviour would constitute a breach of the AVO, which directed the father not to “harass [or] threaten” the mother.
Furthermore, the mother had annexed to her affidavit sworn 1 April 2010 a 23 page, closely typewritten, record of the messages she had received from the father at all hours of the day and night in a period of less than two months. The mother had annotated this record. One of the annotations recorded that she had telephoned the police in Sydney to report the father for calling her a “ganger” over the telephone, but they told her to report the matter to the police in Western Australia. She then added, “I then changed my mind as I was scared that if he goes to jail his family might become very angry and vengeful”. Even though his Honour seems to have proceeded on the basis the mother had not reported any breaches to the police, the fact remained he was aware the father had sent the mother “threatening” messages.
Another matter of concern is the inference his Honour drew from the amendments made by the mother to the orders she was seeking. In paragraph 12 of his reasons, his Honour had acknowledged that the mother may have made the amendments to show she was “prepared to encourage an ongoing relationship with the Father”. Indeed, his Honour later found that the amendments might indicate a willingness on her part to facilitate such a relationship. However, in paragraph 57 of his reasons, his Honour took the amendment to mean that the mother “clearly no longer considers the children need to be protected from exposure to family violence”. In fact, he went further in saying, “perhaps that is a concession that away from the relationship, the Father is not likely to expose the children to such conduct”.
Whilst we acknowledge the presence of the cautious word, “perhaps”, we nevertheless have difficulty in accepting this was an appropriate remark in view of the evidence given by the mother in her affidavit, where, for example, she said:
59.The [father] was involved in a violent domestic dispute with a neighbour in our first home in [suburb] where he was lucky that his lawyer got the police charge lowered. The [father’s] friend that he asked to company [sic] him to attack our neighbour was sent to prison for holding a gun in that incident. Following this incident, the friends that used to associate with the [father], knocked on the window of my car while I was at traffic lights in Sydney and the children were in the back of the car. They started yelling at the [father] threatening him that he owes them money for being locked up in prison and that they will come after him. I have not been able to sleep properly at night ever since this incident and all the children sleep with me.
The father admitted he had been involved in a dispute with the neighbour. He characterised the incident as him having tried “to do a good thing by breaking up a fight with my neighbour and a third party”. The court that heard the charge brought against him apparently did not see the matter in that light, since he admitted he had been convicted and fined $450.
At no stage did the mother recant any of the evidence she and her witnesses had given about the father’s behaviour. Her counsel in her oral submissions to his Honour submitted that as a result of the husband’s behaviour “the risk to the children is both real and grave”, and cautioned that if the mother was required to return to Sydney there was “no guarantee that the children will not be exposed to further acts of violence”. Counsel also drew attention to the fact that the AVO provided inadequate protection to the mother if the father was going to breach it, which it was asserted he had.
In our view, given the uncontested evidence, unless and until the mother’s evidence had been tested and discounted, it would not have been appropriate to consider any arrangement for the children which would involve the mother coming into contact with the father. On the contrary, it was most important that any interim orders be crafted to preserve the mother’s safety, not only for her protection, but also to ensure the children were not exposed to family violence.
We have already observed that the father’s proposals would have involved eight handovers in Sydney every week. There was no evidence of the availability of a handover service in Sydney, let alone one that would be able to accommodate anything like that regime. The mother had no family in Sydney to assist with handover. Her concession that the father should be able to spend time with the children was expressly predicated on the basis that her family members in Perth would facilitate the handovers required (during five sets of visits spread over an eight month period). Although his Honour considered the mother had exaggerated her claim that she had no friends in Sydney, there was no evidence there was anyone else who could assist her to facilitate handovers in Sydney.
It needs to be emphasised that the proposals advanced by the mother, and which entailed unsupervised time between the children and their father, were made on the basis that she and the children continue to reside in Perth, and not on the basis that she and the children should return to Sydney.
We concluded that his Honour erred in deciding that because the mother was proposing unsupervised time, it was not necessary to make orders to protect the children from family violence. We further concluded that his Honour erred in failing to place any real weight on the evidence of the mother as to the issue of violence. Had proper weight been given to that evidence, his Honour may have considered that it outweighed the other benefits he saw as being associated with the return of the children to Sydney.
It is also perplexing, given his Honour’s failure to attach any real weight to the mother’s evidence as to violence, that when discussing whether or not there was evidence before him that the father had been charged with assault and the need for an adjournment to issue a subpoena, his Honour said to counsel for the mother (at Appeal Book 230), “Ms Mills, there appears to be well and truly enough evidence before the Court for me to determine these issues”.
At the very least, consideration needed to be given to whether it was possible for handovers to take place in Sydney in a way that would provide protection for the mother and the children. The frequency with which such arrangements could be made would, in turn, have impacted on the decision as to whether it was appropriate to disturb the arrangements that had been in place for six months, or whether the matter should instead be expedited to trial.
We therefore found merit in the mother’s complaints.
The possibility of the father moving to Perth
His Honour acknowledged that one option was for the father to move to Perth, rather than for the mother and children to move back to Sydney. However, he found he did not have the power to force the father to move, and in any event considered it was “unlikely” he would move to Perth. At no stage in his reasons did he consider whether the father realistically could move to Perth.
We consider there is substance in the mother’s complaint that his Honour failed to give proper consideration to the father’s ability to relocate to Perth. The father was not in employment. He was receiving workers’ compensation. He was living with his family, and did not have a mortgage or a lease on a home in Sydney. He had told the mother in many text messages that he was prepared to move to Perth. If he had moved to Perth pending trial, the children would have continued to enjoy the many advantages his Honour had identified as being associated with the mother remaining in Perth. The children would also have been able to have the more frequent time with the father that his Honour considered was appropriate.
In our view, it would have been open to his Honour to find that the father could move to Perth pending the final hearing. It is difficult to envisage that the father’s circumstances in Perth could be any more difficult than those that awaited the mother in Sydney. If it was proper to assume she could find a refuge in which to live with three children in Sydney, it would have been proper to assume he could find some form of shelter in Perth. Any concerns the father might have felt about living in Perth mirrored those the mother had about living in Sydney, save that the father did not express concerns for his safety.
We considered his Honour erred in accepting, as in any way determinative, the fact the father would be “unlikely” to move to Perth if his application was unsuccessful. As his Honour himself said, in paragraph 77, if the outcome was that the best interests of the children required them to remain in Perth, “the Father would have a significant decision to make”. It is therefore less than clear to us why, in the very next paragraph, his Honour appears to accept as determinative that the father was unlikely to move to Perth.
We considered the way his Honour dealt with the option of the father moving to Perth constituted appellable error.
Priority given to the children having a meaningful relationship with the father
His Honour made a number of findings favourable to the father’s case in determining that the benefits associated with the children remaining in Perth pending the trial were outweighed by the adverse effect on them of further separation from their father. These included findings that:
·there was “no doubt that these children would benefit from having a meaningful relationship with both of their parents”;
·he had “no concerns” about the capacity of the father to provide for the children’s needs, including their emotional needs;
·as far as could be determined, the father had “generally adopted an appropriate approach to parenting”; and
·he had “no concerns” about the willingness and ability of the father to foster a relationship between the children and the mother.
Whilst it was conceded on behalf of the mother that it would be desirable in principle for the children to have a “meaningful relationship” with their father, we are unable to discern in any of the material any concession by the mother concerning these favourable findings. On the contrary, the evidence she had provided, especially that concerning the way the father routinely abused and humiliated her in the presence of the children, would suggest that none of these favourable findings could be made, assuming her evidence was accepted.
The approach his Honour adopted in relation to these matters is in contrast with the approach he adopted to the allegations of violence. Because the allegations of violence were denied, he was not prepared to make any findings. Yet, the findings favourable to the father were made in the face of the mother’s evidence which pointed firmly in a different direction. They were also made in the face of submissions from counsel for the mother, who argued, for example, that the father had demonstrated a poor attitude to the responsibilities of parenthood. (Transcript 28 May 2010, p 19)
We therefore found merit in the mother’s complaints about the priority afforded to the father having a meaningful relationship with the children pending a final hearing. It was possible the father had a good relationship with the children, and it is possible that there would be an adverse impact on the children of being further separated from him. However, these could not be taken as given, in the way his Honour clearly did.
The practical considerations
It was asserted by the mother that his Honour overlooked the practical considerations associated with requiring her to return to Sydney pending a final hearing. Particular emphasis was placed on the mother’s claim that she would have to live in a refuge, since she had limited financial means. His Honour accepted there was substance in this proposition, since he recorded it was a “significant factor”.
There was no evidence to suggest there was a refuge available for the mother and the three children, whereas in Perth the mother had accommodation with her family. We note also that in his oral submissions before us, counsel for the father properly conceded that “nobody” wanted the mother to live in a refuge.
Although counsel for the father drew our attention to evidence about the availability of accommodation the father’s family could provide to the mother in Sydney, his Honour made no reference to that in his reasons, and presumably discounted it – in our view for good reason. Had his Honour considered the father’s offer of accommodation for the mother, he would then again have needed to consider what weight to attach to the mother’s allegations concerning violence. If they had substance, then it would have to be accepted that the mother would not wish to live in any accommodation provided by the father’s family because the father would know where she was living (quite apart from any considerations about whether the father’s family would, in fact, provide, and continue to provide, such accommodation).
Nevertheless, we did not consider it could be fairly said that his Honour overlooked the practical considerations associated with the mother returning to Sydney. He recognised that being required to live in a refuge was a significant factor. He also recognised that the mother would struggle to cope if she was to return to Sydney, and that this “may well have an adverse effect on the children”. Regrettably, however, he had not been provided with any information to allow him to appreciate how long the mother and children would be required to live in such circumstances while waiting for the Court to hear her application to return to Perth.
On the rehearing of the matter it would be expected that evidence would be available concerning the likely delay in a final hearing of the matter in either Perth or Sydney. Once that information is available, the Court will be in a better position to determine the weight to be given to the practical difficulties the mother would face in the event she was required to return to Sydney.
Failure to make a genuine attempt to resolve the dispute
Before concluding our discussion of this appeal, we wish to make mention of the use Kaeser AM made of the checklist which Boland J provided in Morgan and Miles as being useful in relocation disputes.
It will be recalled that the Acting Magistrate made reference to the first item in that checklist, which suggests that a court dealing with such disputes “must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the issue”. His Honour found that the parties had not made such an attempt, but his reasons do not make clear what impact, if any, this may have had on his decision.
We accept that in preparing her checklist, Boland J was attempting to provide guidance for parties and practitioners involved in relocation disputes. However, one difficulty in creating a “checklist”, is that a gloss will be added to a statute that is already overly complicated. A further concern is that judicial officers will begin to apply the checklist, rather than the legislation, thereby overlooking the nuances contained in the statute.
Subdivision E of Division 1 of Part VII of the Act lays down the requirements for parties to make a genuine attempt to resolve disputes by using family dispute resolution services before instituting proceedings. There are, however, clearly stated exceptions to that requirement (which Boland J attempted to capture by use of the expression, “unless an exclusionary circumstance applies”). Kaeser AM did not in his reasons specifically address the question of whether such circumstances applied here.
The legislation clearly recognises, in s 60I(9), that where there are reasonable grounds to believe that there has been family violence or there is a risk of family violence, there is no obligation to make a genuine attempt to resolve matters before instituting proceedings. Kaeser AM, when addressing the application of the presumption of equal shared parental responsibility, properly found there had been “family violence”. In those circumstances we see little utility in his Honour having referred in his reasons to the absence of a genuine attempt by the parties to resolve their dispute.
In our view it is important that victims of family violence understand they will not be criticised for failing to seek to resolve disputes they may have with the person who perpetrated the violence. Such attempts to resolve issues could place the victim at further risk, or result in outcomes that are not in the best interests of children.
We acknowledge that no finding has been made that the father had behaved violently toward the mother. However, until it is established one way or the other, the mother ought not be criticised for not having made a genuine attempt to resolve the dispute with him.
Re-determination
Although the amended Notice of Appeal sought that we re-determine the matter if we found appellable error, we did not consider it was practicable to do so. Apart from the time that had elapsed since the evidence was filed, we considered it important to ascertain the likely delay in the hearing of the matter in Perth and Sydney before deciding the interim relocation and venue issues.
Application to adduce further evidence
The mother sought leave to rely upon a further affidavit. It was unnecessary for us to receive the affidavit, since we determined the appeal would succeed on the basis of the evidence before the Acting Magistrate, and we had decided not to attempt to re-determine the matter.
Costs
We granted costs certificates to both parties relating to the appeal and for the rehearing. We did so because the appeal succeeded on a question of law and there was no basis upon which the father could properly be ordered to pay the mother’s costs.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Thackray and Strickland JJ) delivered on 12 April 2011.
Associate:
Date:
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