Duncan and Jacobs

[2016] FCCA 1047

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUNCAN & JACOBS [2016] FCCA 1047

Catchwords:
FAMILY LAW – Interim parenting – where the mother has unilaterally relocated the residence of the child – where the evidence raises serious issues about the parenting capacity of both parents – where a s.91B Order is appropriate – where the least risk to the child is a return to the (omitted) or (omitted) area.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61D, 61DA, 65DAA, 69, 91B

Cases cited:
Goode & Goode [2006] FamCA 1346
Morgan & Miles (2007) FLC 93-343
MRR v GR [2010] HCA 4

Applicant: MR DUNCAN

Respondent: MS JACOBS

File Number: WOC 177 of 2016

Judgment of: Judge Altobelli

Hearing date: 5 April 2016

Date of Last Submission: 5 April 2016

Delivered at: Wollongong

Delivered on: 15 April 2016

REPRESENTATION

Solicitors for the Applicant: Lees Luke Family Law

Solicitors for the Respondent: Legal Aid NSW

Solicitors for the Independent Children’s Lawyer: Verekers Lawyers

ORDERS

1. Pursuant to section 91B of the Family Law Act 1975, the Secretary of the Department of Family and Community Services is requested to intervene in these proceedings in relation to the child X born (omitted) 2014 (‘the child’).

2. The Solicitor for the Mother and the Solicitor for the Father are to forward to the Solicitor for the Secretary of the Department of Family and Community Services at its Head Office in Ashfield not later than 4.00 pm on 29 April 2016, copies of the documents filed by each of the parties to date.

3. Upon request from the nominee of the Secretary the Registry Manager, permit inspection of the Court file to enable consideration of the request to intervene in the proceedings.

4. The Court notes that for the purposes of this notification the subject child presently lives with Mother.

5. That, by no later than 15 June 2016, the Mother return the child's residence to the (omitted) or (omitted) regions but that the Mother not be obliged to disclose where she and the child are living, except to the Court and to the Independent Children’s Lawyer.

6. That from 15 June 2016, the Mother be restrained by injunction from removing the child's residence from the (omitted) or (omitted) regions without the written consent of the Father and the Independent Children’s Lawyer or Order of the Court.

7. Pending the child’s return in compliance with these Orders, the child live with the Mother and the Father on a week-about shared care arrangement which continues the arrangement reflected in Consent Orders made 5 April 2016.

8. For the purpose of these Orders all changeovers pending the child’s return are to take place at the KFC restaurant located at (omitted).

9. If the child is returned in accordance with these Orders and if the Mother has herself returned to live in the (omitted) or (omitted) regions, the child will continue to spend time with each parent on the equal shared time basis referred to in Order 3 above.

10. For the purpose of order 5 above, unless the parents otherwise agree, all changeovers are to take place at the McDonald's restaurant located at (omitted).

11. Should the Mother not return the child's residence to the (omitted) or (omitted) regions in accordance with these Orders then:

    (a)Notwithstanding any order above the child shall live with the Father.

    (b)The child shall spend time with the Mother each alternate weekend from 12 noon Friday to 12 noon on Monday with changeover to occur at the KFC restaurant located at (omitted).

12. The Father and the Mother undertake (by provision of urine screen in accordance with the Australian/NZ standard 4308:2008 or any subsequent approved standard) chain of custody urinalysis for drug screening on no more than one occasion each calendar month and within 48 hours of receipt of a request to do so from the Independent Children’s Lawyer with such request to be communicated by email, SMS communication or facsimile transmission to the Solicitor for the party or the party directly and provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same. For the purposes of this order each party if unrepresented shall within 24 hours provide to the Independent Children’s Lawyer details of their mobile phone number, email address if available and facsimile phone number if available.

13. If at any time either parent does not comply with a urinalysis request, provides a result that does not comply with standards for supervised chain of custody urinalysis or returns a positive result for any illicit substance other than cannabis or a result for cannabis greater than her immediately previous result for cannabis, then that parent’s time with the child shall be immediately suspended and will not be re-instituted until that parent produces a current clean supervised chain of custody urinalysis result to the Independent Children’s Lawyer. 

14. The parties are restrained by injunction from using illicit drugs or consuming alcohol while the child is in their care or for 12 hours prior to the child being in their care.

15. The parties are restrained by injunction from bringing the child into contact with any other person using illicit drugs or under the influence of illicit drugs.

16. The parties shall only communicate with each other regarding care arrangements for the child and shall only communicate by way of text message or email, unless in the case of an emergency.

17. The parties are restrained by injunction from attending each other's homes.

18. The parties are restrained by injunction from being within 100 metres from each other except for the purpose of changeover in accordance with these orders.

19. That the parties be restrained from making critical or derogatory remarks about the other parent or members of that parents’ family in the presence or within the hearing of the child and to ensure that no other person does so.

20. Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 48 hours’ notice by application to the Court in Chambers in appropriate circumstances.

21. Liberty is granted to the parties to re-list the matter on 7 days’ notice by joint application to the Court in Chambers in appropriate circumstances.

22. The matter be adjourned to 3 August 2016 at 2:00pm for Mention.

23. The matter be listed for 3 day Final Hearing commencing on 3 October 2017 at 10:00am.

THE COURT NOTES THAT:

A.On the next occasion, the Court will have regard to the child’s return in accordance with these Orders and as to the progress of expert evidence issues.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 177 of 2016

MR DUNCAN

Applicant

And

MS JACOBS

Respondent

REASONS FOR JUDGMENT

Background

1. I provide the following Reasons for Judgment.

2. This case is about a child, X, who is 2 years old.  The Court must decide which of her parents she should live with and how much time she should spend with the other parent.  This is a very difficult case and a finely balanced decision.  The conclusion that could be reached after a Final Hearing may be different to the present one.

3. The Father is 30 years old, the Mother is 27 years old.  The Mother has two children from previous relationships.  The parents commenced their relationship in December 2011 and separated in May 2015.  They appear to have been living in the (omitted) area at the time of separation.  The Mother and all of the children moved to rented accommodation at (omitted).  In February this year, the Mother relocated to (omitted).  She entered into a lease for six months.  There is no dispute that the Mother’s relocation was unilateral in the sense that she neither sought nor obtained the Father’s consent to the extent that it was necessary relating to X.

4. On 25 February 2016, the Father commenced the present proceedings.  A number of Interim Orders have been made, the effect of which is that the Father has been spending week about time with the child.  The matter came before me for Interim Hearing on 5 April 2016.  Submissions were made.  A considerable volume of documents were tendered in evidence.  These Reasons for Judgment explain the Orders that the Court has made in light of that evidence. 

Competing Proposals

1. The Father’s proposal is contained in the Minute of Order sought by him attached to his Amended Case Outline document filed 1 April 2016.  He proposed equal shared parental responsibility, that the Mother return the child either to the (omitted) or (omitted) areas by 4 May 2016 and that thereafter the child live in an equal shared care arrangement.  If the Mother did not return to the (omitted) or (omitted), then the child would live with the Father and spend time with the Mother each alternate weekend from 12noon on Friday to Monday 12noon with changeover to occur at (omitted).

2. The Orders proposed by the Mother are set out in her Response filed 5 April 2016.  She proposes sole parental responsibility, that the child live with her and that the Father spend time with the child each alternate weekend from 12noon Friday to 12noon Monday with changeover at (omitted).  The Father’s time, however, would need to be supervised by the people who she proposes.  Both parents proposed ancillary Orders by way of restraints and various conditions.

3. X was represented by Mr Williamson as Independent Children’s Lawyer. His proposal is set out in his Case Outline document dated 31 March 2016. He sought an Order that the Department of Family and Community Services (‘the Department’) intervene pursuant to s.91B of the Family Law Act 1975 (‘the Act’), that the child live with her mother and spend time with her father each alternate weekend from 12noon Friday to 12noon Monday with changeover at (omitted). 

Evidence

1. The evidence in the Father’s case consisted of his two affidavits filed 25 February 2016 and 31 March 2016 and affidavits from his mother and her partner. The evidence in the Mother’s case consisted of her affidavit filed 5 April 2016. A number of documents were tendered in evidence including drug tests, documents produced on subpoena by the (omitted) Local Health District, by the Department and also documents produced pursuant to a s.69ZW Notice.

2. The delay in providing these Reasons and making Orders is attributable to the need to examine this voluminous material.  The Court must therefore decide what Orders to make in relation to X that are in her best interests.  In reality this case is, like so many other cases in this registry, a risk assessment and minimisation exercise.  In reality, the decision is about trying to establish in the face of incomplete and conflicting evidence where the least risk for X is found. 

Applicable Law

1. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’) the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The applicable law is, of course, Part VII of the Act. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

3. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

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

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

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

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

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

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

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

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

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

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

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

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

4. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

5. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

1. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

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

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

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

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

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

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

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

2. In MRR v GR [2010] HCA 4, the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

3. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

4. The Full Court, in Morgan & Miles (2007) FLC 93-343, made a number of comments relevant to the circumstances of this case, in paragraphs 82 to 88 (emphasis added):

   82. It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.

   83. I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.

   84. The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.

   85. In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph. Whilst lengthy, it aids understanding to set out the relevant passages from Goode:

   71. The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   73. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).

   86. I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to 
   s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.

87. As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.

88. It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.

The Cases Outlined

1. I will briefly outline the cases.  Briefly stated, the Father’s case is that through the Mother’s actions she has disrupted a long standing parenting arrangement that provided in effect for equal shared care of the child.  He says that there is a risk of harm to the child in the Mother’s care because of her drug abuse, violent, erratic behaviour and mental health issues.  His case is that he has a strong and meaningful relationship with X that will be devastated as a result of the relocation quite apart from the risk of harm issues to her.

2. The Mother’s case briefly stated is that her actions were motivated by the need to flee that is, to escape the family violence that she was suffering.  She alleges that the Father was violent both physically and verbally and that the nature of this violence was both coercive and controlling.  She says that there is a risk of harm to X in the Father’s care because of the violence and because of his excessive level of alcohol consumption.

3. The Independent Children’s Lawyer’s case seemed to acknowledge that there was an element of truth in the allegations made by each parent against the other.  He submitted that there would be risk of harm issues whether the child was placed in the Mother’s care or the Father’s care.  He was critical appropriately, of the deficiencies in each parent’s case particularly in terms of providing details or evidence about the nature of their relationship with X and the detail of proposals for her care in the event that she lives with them.

4. In his case it was pointed out that both parents significantly lacked parental capacity. He submitted there was probably substance to the Mother’s allegation about family violence as well as to the Father’s allegations about the mother’s mental health issues. Indeed, he submitted quite frankly that the child should not be living with either parent, hence the s.91B Application. Pending Final Hearing, however, he proposed that on balance, the child remain living with the Mother in (omitted) and spend time with the Father.

The Evidence Discussed

1. I turn now to discuss the evidence.  To the extent that the Mother asserted that she was the primary carer of X up until the date of separation that is unlikely to be the case on the basis of the evidence before the Court.  It is more likely than not that an equal shared care arrangement, or equivalent, existed before separation and arguably after the date of separation as well.  In this regard for example the Court gives consideration to the parenting plan that the parents executed dated 22 April 2015. 

2. There is some substance to the concerns raised by the Father about the Mother’s erratic, aggressive behaviour, consistent with mental health issues.  The documents produced by the (omitted) Local Area Health District are of concern.  The Father’s assertions about the Mother’s drug use, specifically cannabis, are borne out by the same documents as well as some further documents produced by the Department.  Indeed, the Mother makes some limited admissions about drug use.  It is of concern that on review of the records produced by her treating professionals at various times, she has either denied or actively sought to minimise the nature and extent of her drug use.  The same drug issues do not appear in the documents to be as great a concern so far as the Father is concerned.

3. The Mother’s concerns about the Father’s excessive use of alcohol is substantiated by the evidence.  The Father himself admits that he drinks about eight light beers a day when the child is not in his care and three to four light beers a day when she is in his care.  The Court is further concerned that if this is the admitted level of consumption the reality is probably substantially higher.  The Mother’s allegations about the Father’s family violence perpetrated against her are problematic.  On the one hand her allegations are detailed.  There is corroboration in some of the business records produced to the Court.  Nonetheless, there are also inconsistencies in her allegations between what she deposes to and what is recorded in the subpoenaed documents.

4. Of particular concern to the Court are the Mother’s allegations about an assault that took place on 23 March 2015, about two months before separation.  On the one hand her allegations are detailed and there is corroborative evidence by way of a discharge summary from the hospital.  On the other hand, however, the people present at the alleged assault that is the Father, his mother and her partner, present completely different accounts of the incident.  The consistent theme of their evidence is that the Mother was argumentative, aggressive, assaulted the Father and injured herself during the course of that assault.

5. All that can be said with confidence is that there was a violent incident on 23 March 2015.  The Mother was injured as a result of the same.  The Mother’s involvement in this incident was greater than she asserts.  There is other corroborative evidence in the business records to suggest that she has been aggressive and erratic in the presence of third parties including those there to assist her.  The Court does not discount also the possibility that the two witnesses in the Father’s case who are clearly aligned to him are thus providing partisan evidence.  Only cross-examination at a final hearing will establish what exactly happened at this event.

6. No documents were tendered in relation to police involvement.  It seems that there are no Apprehended Violence Orders against the Father.  There was some suggestion in the business records of an Apprehended Violence Order against the Mother taken out by a third party.  Some of the evidence referred to in the Mother’s case as corroborative of family violence may in reality be corroborative of the Father’s concerns about the Mother’s unstable mental health.  For example, records suggesting that marks on her neck were in fact attributable to self-harm attempts.  In fact, the Court’s greatest concern after reviewing the evidence is about the Mother’s mental health.

7. These mental health issues cannot be isolated from drug abuse issues.  The Mother’s most recent mental health admission appears to have been 14 September 2015, several months after the date of separation.  The notes in question indicate that the admission followed an argument with her partner by phone.  She was found to be highly agitated and threatening self-harm.  An ambulance was called.  The police attended.  There is no question from these records that those professionals attending and treating her considered her threat of self-harm to be a serious one and that the risk extended to her daughter, X.

8. The same records corroborate the Mother’s concerns about the Father’s abuse.  She was described to be aggressive when questioned.  She denied marijuana use but this was inconsistent with her own previous admissions in earlier records.  The same record it must be said evidences or corroborates aggressive behaviour by the Father.  There was another mental health admission on 8 April 2015 by the Mother before final separation.  Once again she is recorded as having been aggressive, verbally abusive and once again the record is corroborative of her family violence allegations.

9. Her presentation to the hospital was again in the context of a threat of self-harm.  She needed to be sedated.  Curiously, there is reference to an assault in March with a hammer to her back but this doesn’t feature in the Mother’s own evidence.  The paramedics record some of their impressions that she was possibly paranoid and was certainly difficult to engage with due to continued verbal aggression.  The only other relevant hospital records relate to the birth of X in (omitted) 2014.  At that stage she gave no history of family violence in her relationship with the Father but did acknowledge a previous history of family violence with earlier partners.

The Dilemma

1. The clear dilemma presented in this case is that there is probably substance to the Mother’s concerns about the Father’s family violence and substance to the Father’s concerns in relation to the Mother’s mental health.  But there is no evidence to establish, for example, that the two are related.  There is concern about the risk that the Mother has minimalised not just her mental health concerns but also drug abuse issues.  There is concern that the Father has minimalised the nature and extent of the violence that he perpetrated and is minimalising his current alcohol intake.

1. All of the dilemmas that present in this case arise in a context where it is highly likely that the Father was substantially involved in the care of X and indeed that continues pursuant to interim arrangements the parents have themselves entered into.  There are significant issues of practical difficulty as well.  The Mother says that she is well supported in (omitted).  The Court does not accept that that is necessarily as clear as the Mother contends.

2. The Father’s proposal for equal time is an interesting one to make in the context where he makes such serious allegations not without substance as it turns out.  In effect, he is proposing unsupervised equal time.  At least from the Mother’s perspective her proposal is that the Father’s time be supervised.  The Court must focus on making an Order that protects the child from the risk of harm.  Issues about lack of consistency between concerns and proposals fall into the background when there is objective evidence before the Court which establishes grounds for concern. 

3. From one perspective, however, the Father’s proposal for equal time in the (omitted) or (omitted) at least provides a safety net for X in the sense that she will be away from the concerns in relation to the Mother each alternate week.  Leaving the child in the care of one parent rather than the other places all the risk eggs in one basket.

Section 60CC Considerations

1. Let me discuss the relevant s.60CC considerations. The evidence before the Court suggests that X has a meaningful relationship with both parents. The Court is not satisfied that this meaningful relationship with the Father would continue on the Mother’s proposal. As will be seen from the discussion of reasonable practicability below, the Court believes that there are so many obstacles to the successful implementation of a regular ‘spends time with’ arrangement between the child and either of her parents if one remains in the (omitted) and the other in (omitted) that the proposal that each makes in this regard is, in all likelihood, not going to subsist even in the medium term let alone in the long term.

2. Indeed, on the evidence before the Court, the most likely means of achieving a continued meaningful relationship is if the Mother and child relocate back to the (omitted) or the (omitted) within a reasonable time and on the basis that the existing spends time with arrangement subsists.  But obviously this is only one of many considerations the Court must consider. 

3. On the material before the Court, there is the need to protect the child from harm whether she lives with her mother or her father.  The risk from her father emanates from his very high level of consumption of alcohol.  A subsidiary issue relates to any finding that might be made in the fullness of time that he has indeed perpetrated family violence against the Mother as she alleges.  In hypothetically accepting the Mother’s case for present purposes, a reasonable inference is that the child has been exposed to family violence but there is little credible evidence to suggest that she has been subject to violence.  Amongst other things, as a role model of course the Father would be left wanting if there is substance to the Mother’s allegations.

4. The risk in the Father’s household is mitigated by regulating his alcohol consumption particularly when the child is in his care.  The risk of violence is mitigated by the separation and the geographical distance between the parents.  Obviously changeovers would need to be closely regulated so as to avoid the risk of conflict. 

5. The risk of harm from the Mother emanates from what the Court considers to be the uncertainty surrounding her mental health issues, her drug use particularly of cannabis and her erratic and aggressive behaviour.  Her history indicates even after separation mental health episodes associated with self-harm.  The fact that she has another child in her care who appears from the evidence to have some special needs is in itself an exacerbating factor.  The Mother says that she is well, that she is supported where she lives.  But that is far from clear on the available objective evidence.

6. In terms of the risk to the child, the Court believes that the risk can be more effectively assessed and managed through closer scrutiny in the (omitted) and/or (omitted).  In assessing the risk to the child, the Court cannot ignore this reality.  That is that if the Mother and child are allowed to remain in (omitted), it would probably be necessary to change the venue of these proceedings probably to the Parramatta registry which circuits to Dubbo.  The harsh reality of this, however, is that access to the Court is more problematic as compared to for example accessing the Wollongong registry which has very close to the equivalent of a full time judge. 

7. To the extent that explicitly or implicitly, the Mother’s case is that she was escaping family violence and that a return to the (omitted) would traumatise her, this ignores the reality that Orders may be framed in a way to protect her so that she does not necessarily need to disclose where she and the child will live.  Further, there is of course the availability of state protection Orders.

8. The Independent Children's Lawyer was quite justly critical of the parents for the inadequate evidence they led about the nature of their daughter’s relationship with each of them.  It was largely left to inference.  Thus it makes it harder to measure the likely effect of change on the child as a result of the relocation and then subsequent return if that is what is considered to be in her best interest.

9. The inference to be drawn from the available evidence is that the child has a good relationship with both parents.  To allow relocation without a detailed inquiry and investigation as to the nature of her relationships and the impact of relocation would be inappropriate. 

10. The Court has already foreshadowed the significance of issues of practical difficulty and expense.  The Father says he cannot travel to (omitted) on a regular basis.  The Mother says that she has a licence and may be able to facilitate changeovers in (omitted).  The Father leads no evidence about whether this can be made to work from his perspective.  Both parents are Centrelink dependent.  Their respective background factors referred to above make the long term sustainability even of a (omitted) changeover questionable. The impact on the child of the extended travel is something that neither parent has appeared to consider very carefully.  These factors point strongly to a return to either the (omitted) or (omitted) areas. 

11. The discussion about protecting the child from harm foreshadows the Court’s concerns about parental capacity in relation to both parents.  At least in theory, the Father has available to him his mother and her partner.  The Father’s drinking can be objectively monitored by testing.   The same cannot be said about the Mother’s mental health issues absent expert and independent evaluations which take time.  In reality, there are concerns about the parenting capacity of both parents.  These concerns remain whether the child remains in (omitted) or returns to the (omitted).

12. The concerns about parental attitudes and the responsibilities of parenthood remain unabated in the same context as the discussion about parental capacity and risk of harm.  The family violence allegations have already been discussed.  The situation is not nearly as black and white as the Mother contends.  Her own issues strongly contra-indicate adopting a dogmatic stance about family violence at this time.  There are other more pressing issues.  So what are the Orders in the best interests of the child?

Determination

1. Firstly, the Court sees no need to deal with the issue of parental responsibility at this stage.  In a finely balanced case the court believes that the risk to X can be better assessed and managed if she is returned to the (omitted) or (omitted).  The Court does not believe that there is a substantial risk of the mother not returning without her daughter.

2. The Father’s proposal, in effect, suggested that she would have a month to return but the Court believes that a more appropriate timeframe is two months from the date of these Orders.  The existing shared care arrangement reflected in Interim Orders would continue in the meanwhile and this arrangement acts as a safety net protection for X.  If the Mother does not return to the (omitted) or (omitted), this will be her choice.  X will live with her father.  This will be in this Court’s estimation the least of the worst alternatives. 

3. The Order that the Court will make will be broadly in accordance with the minute proposed by the Father but will allow two months for relocation to take place.  The Orders will specify that it is not necessary for the Mother to disclose to the Father where she lives but she will need to let the Court know and the Independent Children's Lawyer know but it’s on the basis that that is not advised to the Father. 

4. Any Order for drug testing henceforth will apply to both parents and will be initiated by the Independent Children's Lawyer.  The Court has expressed its concern about the Father’s consumption of alcohol.  He is not to consume alcohol when in charge of the care of his daughter.  The Court appreciates that abstinence may well be demanding of the Father but given the Court’s concerns about the nature and extent of his current and past drinking there appears little other alternative.  Should the Independent Children's Lawyer require CDT testing or liver functioning testing, it is likely that the Court will make such an Order.  Leave will be granted in that regard. 

5. The ‘spends time with’ proposal made by the Father in his Case Outline document is not very clear to the court.  Given that a week about shared care arrangement is in place that is the Order that the Court will make.  Having regard to the matters set out above, the Court is satisfied that an Order in those terms is both in X’s best interests and is reasonably practicable.

6. The Independent Children's Lawyer is urged to consider making arrangements for expert evidence as this matter does not appear to be one suitable merely for a Family Report.  Given the extensive delays being experienced in this registry, it is intended to allocate a hearing date now.  Once again the parents are reminded that these are Interim Orders that may be changed if the circumstances mandate the same. 

7. I will set this matter down for hearing for three days commencing 3 October 2017.  I will not make any directions at this stage.

8. The matter is next listed before the Court on 3 August 2016 at 2.00pm for Mention.  I will want to know on that occasion what has happened about the Mother’s return or the child’s return and how we are going with expert evidence issues.  In the meanwhile, however, the Orders that I will make are generally in the following terms.

9. Firstly, I’m going to make an order under s.91B of the Act. I will say that no later than 15 June 2016 the Mother is to return the child’s residence to the (omitted) or (omitted) regions but that the Mother not be obliged to disclose where she and the child are living except to the Court and to the Independent Children's Lawyer.

10. The Orders will, in effect, continue the existing shared care arrangement.  There will be Orders about urinalysis.  There will be Orders restraining the Father’s consumption of alcohol whilst he is caring for the child.  And various other injunctions about drug use.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:         31 May 2016