Ellison & Marone

[2022] FedCFamC2F 599

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Ellison & Marone [2022] FedCFamC2F 599

File number(s):	CAC 1342 of 2021
Judgment of:	JUDGE YOUNG
Date of judgment:	26 April 2022
Catchwords:	FAMILY LAW - parenting - concerning two children  - where the mother unilaterally relocated with the children - where the father lives some hours away - where the mother was ordered by Senior Judicial Registrar to return the residence of the children - where the mother has not complied - application for review of decision of Senior Judicial Registrar - where the mother alleges family violence by the father towards the mother - where the mother alleges unacceptable risk to the children of physical or emotional harm by the father - Court not satisfied there is an unacceptable risk of physical or emotional harm - Court satisfied orders for time spent should be varied
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 69ZW
Division:	Division 2 Family Law
Number of paragraphs:	52
Date of hearing:	26 April 2022
Place:	Darwin
Solicitor for the Applicant:	Mr Pigott of JWP lawyers
Counsel for the Respondent:	Ms Davis
Solicitor for the Respondent:	Ms Storrier of HCC Lawyers
Counsel for the Independent Children's Lawyer:	Ms Otrebski
Solicitor for the Independent Children's Lawyer:	Ms Orczykowski of Boland Legal

ORDERS

CAC 1342 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS ELLISON

Applicant

AND:

MR MARONE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	26 APRIL 2022

THE COURT ORDERS THAT:

1.Orders 3, 4, 5 & 6 of Orders made on 28 September 2021 are discharged.

2.Orders 1,2, 3, 4 & 7 of the orders made on 25 February 2022 are discharged.

3.The children spend time with the father as follows:

(a)During every short school holiday period, being the March/April, June/July and September/October school holidays from 2pm on the Sunday immediately following the conclusion of the school term until 2pm on the Saturday immediately before school recommences for the term.

(b)During the December 2022/January 2023 school holidays from 2pm on Friday 23 December 2022 until 2pm on Sunday 8 January 2023.

(c)During the December 2023/January 2024 school holidays, from 2pm on 8 January 2024 until 2pm on 26 January 2024.

4.The children spend time with the father during the school term from 5pm on Friday until 5pm on Sunday provided that:

(a)The time spent occurs within a 210km radius of Town B.

(b)The father travels to Town B for the purposes of changeover.

(c)The father provides the mother with no less than 7 days’ notice in writing, by email, that he will travel to Town B to spend time with the children in accordance with these orders.

(d)Such time shall not occur over two consecutive weekends, unless otherwise agreed between the parties through their legal representatives.

5.For the purpose of Order 3 above, changeover occurs at Shop C in accordance with Orders made on 28 September 2022.

6.For the purpose of Order 4 above, changeover shall occur outside the Town B Police Station. 

7.Changeover shall be conducted by the parents or a nominee of the parents who is known to the children.

8.To the extent these orders contained herein are inconsistent with any State based Family Violence order or legislation affecting the parties hereto, then these Orders shall override any such State based order or legislation.

9.That the Mother be granted leave to provide a copy of these Orders to Town B Primary School.

10.The parents shall make an application for enrolment to comply with order 10 of the orders made 25 February 2022 within 7 days of the date of these orders and shall provide to the Independent Children’s Lawyer a copy of their confirmation of enrolment.

11.The parents are restrained from physically disciplining the children or shouting or yelling at them.

12.The Application for Review filed by the mother on 17 March 2022 be otherwise dismissed.

NOTATION

A.The Court notes that the orders dated 28 September 2021 previously provided for the mother to have sole parental responsibility for the children and that the children live with the mother.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG

1. This is an application for review of orders made by Senior Judicial Registrar Evans on 25 February 2022 concerning the parties two children, X who is eight years old and Y who is six years old. Those orders, in summary, provided for the children to return to live in Town D, New South Wales within four weeks of the date of the orders. A further order was made restraining the mother from again relocating the children’s residence. Various other orders were made, but those are the ones subject to challenge today. 

2. An earlier set of orders made by Senior Judicial Registrar Evans on 28 September 2021 were to continue.  Those orders provided that the mother was to have sole parental responsibility for the children, that the children were to live with the mother, and that the mother would return the residence of the children to Town D. There were also orders made about the time the children were to spend with the father, which was essentially alternate weekends and half holidays.  There were some other orders made on that date, including for CDT tests and an order for a Child Impact Report. The CDT tests have been completed and nothing untoward was revealed. The Child Impact Report has also been completed and dated 9 December 2021.

3. The application for review challenges those orders or seeks a review of those orders with a view to permitting the mother to continue to reside in Town B, New South Wales which is something more than 500 kilometres and 6 hours by road from the father’s home in Town E.

4. The chronology, which appears to be uncontroversial or largely agreed, is relevant to understanding the background of this case.  The parties separated on or about 9 May 2021.  It appears that the parties initially had agreed that the mother would relocate to Town D with the children and the children were to attend a Town D School.  Town D is about an hour’s travel from the father’s home which is also the former matrimonial home. It appears the mother did not comply with that agreement, or if she did it was only for a very short time because on about 16 May 2021 the mother and the children relocated to Town B.

5. While it is not stated, implicit in the dispute between the parties is a recognition that while the children were at Town D, an hour or so from Town E, it would be possible for the children to maintain a close relationship with their father and spend substantial and significant time with him. That is unlikely to be practicable as long as the mother resides with the children at Town B.

6. On 18 May 2021 the mother went to the police station, apparently at Town B to seek family law advice.  There was no specific complaint as is evidenced in the police document tendered, though there was a generalised reference by the mother to violence by the father. 

7. On 27 May 2021 a letter was sent by the father’s lawyers to the mother demanding that she return to Town D as per the agreement that had apparently been reached.

8. On 4 June 2021 the mother reported to the police that the father had indecently touched her or “indecent touching” in the language of the relevant offence in New South Wales. She alleged that on an occasion on about 4 May 2021, before separation, the father had required the mother to perform fellatio on him and when she refused or expressed reluctance had slapped her in the face with his penis.

9. On the next day, on 5 June 2021, the mother made a further report to the police, and on that occasion she complained that:

   (a)the father had raped her, and the police record of that says that her complaint specifically was of anal rape;

   (b)the father had assaulted the children by hitting them with a belt.

10. In July 2021 there was correspondence between the parties and it was said that the mother, initially at least, agreed to return to Town D from Town B, however, she did not.  On 28 September 2021 orders were made by Senior Judicial Registrar Evans for the mother’s return to Town D and for time spent that I have referred to.

11. On 3 October 2021 the mother returned from Town B and the children resumed school at Town D.  The mother at that stage began living with her parents who resided on a farm near or at Town D and the children spent time with their father pursuant to the orders of 28 September 2021.  There is no evidence before the Court of any problems in the children spending time with their father at that stage.

12. From 13 December 2021 the children ceased spending time with the father and until recently have not spent time with him. There is some dispute about why that was.  The mother asserted that the father failed to collect the children, but the father said that the children had not been taken to school for him to collect them. It is not necessary for me to resolve that dispute. 

13. In December 2021 or early January 2022 the mother’s parents sold their property at Town D and moved to Town B.  The father commenced contravention proceedings around that time, which have been adjourned and not yet been dealt with.  In 2022 the mother applied to vary the orders that had been made on 28 September 2021.  She was largely unsuccessful with that application on 25 February 2022 when Senior Judicial Registrar Evans again ordered the mother to return to Town D by 25 March 2022.

14. The mother did not comply with that order to return but there was a stay order made by Judge Hughes staying that order on 24 March 2022.  The application for review of the orders of 25 February 2022 was filed on 17 March 2022.  The mother relied on her affidavit filed 17 March 2022 which makes allegations of family violence.  The allegations are reasonably varied and allege that the father subjected the mother to family violence over a considerable period during the marriage. 

15. It is unnecessary to go through the details of those allegations but in summary they consist of denigration, insults, bullying, jealous behaviour, yelling and abuse.  In addition, there is an allegation of what is described in the affidavit as sexual abuse but really is an allegation of indecent assault and rape.  The particular allegation of rape dealt with in the mother’s affidavit is the one that was alleged to have occurred on 5 May 2021, which I have already referred to. The father was ultimately charged with a count of rape or a number of offences on 9 December 2021.  There are no bail conditions concerning contact with the mother or the children and the matter is still in the Magistrates Court in New South Wales waiting for a date for a committal hearing.  If the father is committed the matter will be transferred into the District Court in New South Wales for trial.  The progress of the matter is, thus, at a very early point.

16. As I say, the mother alleges instances of family violence and the particular incidents of sexual assault or rape that I have referred to.  She also says that in addition to being subjected to family violence and a criminal assault by the father, the children were also exposed to family violence because they were present at times when the father denigrated the mother and it was alleged, this was sometimes directed to the children.  It is not suggested that the children were present during any of the alleged sexual assaults or the alleged rape.

17. In relation to the mother’s allegation that the children were subjected to a physical assault themselves by hitting with a belt, the mother’s evidence about that is vague.  Her affidavit does not say when this is alleged to have occurred.  Indeed, she says in the affidavit that she only heard of it from an older child of hers, F, who is about 14.  The mother said in her affidavit that on 3 June 2021 she made a complaint to Family and Child Services in New South Wales (“FACS”) about that allegation. Her affidavit does not refer to any further steps she has taken in an inquiry by FACS or any other information about that matter. I infer that it either did not reach the threshold for investigation by FACS or it was investigated and found not to be substantiated. 

18. In addition to the allegations the mother makes against the father of family violence and subjecting the children to physical violence, the mother also says that she cannot return to Town D because there is no housing available in Town D. She also says there was a threatening letter put in her letterbox which she believes was from the father.  She says that as her parents have sold their property in Town D and moved to Town B it is not practicable for her to return. 

19. In his affidavit of 20 April 2022 the father denies sexually assaulting or raping the mother, and he points to various matters which were expanded upon by his counsel in submissions which would throw a question mark about the mother’s allegations of rape, in particular. The submissions pointed to the timeline, which I have already referred to, in that the mother’s first complaint to the police on 4 June 2021 made no mention of her being raped, rather an indecent touching. The rape allegation was made the next day.  It is also clear that when she reported the matter to the police on 5 June 2021 she complained of having been raped anally by the father but the police facts which are included in the tender bundle before the Court and which the police tendered to the Magistrates Court allege the father vaginally raped the mother. It is unnecessary and inappropriate for me to make any extensive comment about the likely credibility issues that would flow from those matters.

20. I should also refer to a matter that the counsel for the Independent Children’s Lawyer (“ICL”) pointed out, which is that in the police material produced pursuant to a s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) order there was evidence of a complaint made by the mother in 2014 that the father had threatened to “blow her head off”. She rang the police.  Included in that police material from 2014 is a statement by the mother to the effect that she and the father drank every day or almost every day and argued, particularly when they were drunk or under the influence of alcohol.

21. A few days later the mother is recorded in some documents from FACS as withdrawing the allegations she made against the father and said she was misunderstood or taken out of context.  She said that she only ever thought that the father’s comment about blowing her head off was said in jest.  As a result of her resiling from those complaints an Apprehended Violence Order or a Provisional Apprehended Violence Order was revoked. 

22. As counsel for the ICL said, perhaps not too much weight should be put on that because this Court and all the other courts that deal with family violence are familiar with the cycle of family violence which very often involves family violence and then reconciliation between parties which is accompanied by a withdrawal of earlier allegations.  I accept what counsel for the ICL says about that and I have to proceed on the basis that, notwithstanding what the mother later said, the initial allegations may be true.

23. Counsel for the mother said that this was a case where s60CC(2)(b) of the Act was engaged and that there was an unacceptable risk to these children of physical or psychological harm at the hands of their father. I do not accept that submission. The particular risk that was identified by counsel was a risk of physical harm and emotional harm. The evidence of direct physical harm of the children by the father is slight. Apart from the material and the mother’s allegation alleging that the children were present sometimes when the father yelled at her or denigrated her, the only other evidence of physical harm is the allegation that the children were struck by the father using a belt. I accept, if true, this would likely to amount to a physical assault. That was reported to FACS and nothing further came of it. I am not satisfied that that constitutes evidence of risk, let alone evidence of unacceptable risk.

24. Similarly, with the allegation of emotional harm I am not satisfied that there is evidence of that, though it is clear from the Child Impact Report that these children have been exposed to a high level of conflict between their parents.  The Court Child Expert was concerned about the presentation of the children.  She said that both children found it difficult to say anything positive about either parent.  Town B said that the father yells and she wanted less frequent time with him.  Y said that the father had smacked him and he does not want to visit the father either.

25. Those matters are obviously deeply concerning, particularly in the circumstances of this case where there are very serious allegations of family violence.  The Child Impact Report also recorded other allegations the mother had made against the father including that he was a drug dealer and that he had criminal companions.  She also said that she believed the children were at risk of sexual harm from the father.  It is notable that those allegations have not been pursued in the mother’s affidavit material before me and one must ask whether such allegations not pursued reflect on the mother’s attitude to the father and the reasonableness of that.

26. The Court Child Expert explored that very possibility and she was concerned that the mother’s negative views of the father may well be affecting the children’s views of the father.  I consider that is a very real possibility on the material that I have considered today.  The Court Child Expert also said that the presentation of the children may be consistent with them being exposed to family violence as well. I feel unable to reach any firm conclusion about that.

27. The father said to the Court Child Expert that the children love spending time with him and he said that they seem to enjoy themselves.  The Court Child Expert said that was inconsistent with the mother’s statements about the children being reluctant to spend time with the father or not enjoying the time but she said that one possibility for that was that the children felt less able to express their views and emotions with the father.

28. Those matters seem to be largely speculative.  The Court Child Expert also recorded that both parents had difficulty focusing on the feedback she was giving them about the views of the children.  All in all, the Child Impact Report is not particularly encouraging about the attitudes to parenthood of both parents and it suggests that these parents have not succeeded in managing to protect these children from their own conflict. 

29. It is notable that neither child told the Court Child Expert that they had been hit by a belt by the father.  Counsel for the father also pointed out that no complaint has been made by the mother about the success or otherwise of the children spending time with the father since separation.  The children have spent time with their father over the recent school holiday and are due to return to the mother about now. 

1. Apart from the Child Impact Report, which obviously raises concerns about the welfare of these children, there is nothing, in my view, to point to the children being at unacceptable risk of emotional harm in their father’s care.  I note that the children, Y in particular, said that the father yelled.  I am assuming the father is hearing the reasons I am giving now and he will be aware that the children’s report of both parents is far from encouraging and that if he is yelling at the children he should stop because it is harmful.

2. Having regard to those matters, I am not satisfied that the children are at unacceptable risk of harm in the father’s care.  I am satisfied there is no risk of physical harm. The risk of emotional harm, particularly through the father’s yelling, should cease and I propose to make an order that the father is not to yell at the children, as well as the orders sought by the ICL that neither parent is to use any physical punishment.

3. If s 60CC(2)(b) of the Act is not engaged, then the matter that must be given consideration is the benefit to the children under s 60CC(2)(a), that is the benefit to the children of having a meaningful relationship with both parents. In the context of this case that means a meaningful relationship between the children and the father and how it is to be fostered.

4. There is a real question mark about the mother’s motivation in relocating to Town B.  In broad terms, the possibilities appear to be that she is afraid of the father and, because she has been the victim of family violence and a serious criminal assault, she has a proper basis for being afraid of the father.  Noting that the purpose or advantages of the mother’s moving to Town B have not been addressed, another possibility is that the mother’s intention in relocating is to minimise the contact the children have with their father. In other words, an intention by the mother to undermine the relationship between the children and their father either deliberately or indirectly.  Of course, it is possible that there are elements of both of those factors at work.

5. The mother has flouted the orders of the Court by returning to Town B.  Her reasonableness or otherwise of her contravention will be decided in a contravention hearing later on.  I am not going to attempt to make any findings about the reasonableness or otherwise of her conduct. However, she has been non-compliant with orders of the Court in circumstances that clearly indicate that the non-compliance is deliberate.

6. The Senior Judicial Registrar was, I infer from the orders she made, of the view that the mother’s relocation was unreasonable.  The second part of her orders, which was that if the mother did not relocate, the children were to live with the father is, in the circumstances of this case, not one that I would be prepared to make.  The reason for that is that the father has been charged with a very serious criminal offence.  If he is committed for trial and found guilty after a trial, there would have to be an expectation that he would be sentenced to a period of imprisonment.

7. In those circumstances I am of the view that it is not to be contemplated that there be an order that the children live with the father, not until those matters are resolved one way or another.  Ordinarily, one may expect in the circumstances of this case that an order for the mother’s return to Town D would be made, leaving aside her assertions that she cannot afford housing in Town D which I do not find it necessary to examine. 

8. I think there is a real doubt about the mother’s willingness to comply with Court orders or, if she did comply, whether it would be only for a short period.  However, the matter that I give greatest weight is that these children have experienced a great deal of instability in the past 12 months. 

9. The children were, at the beginning of last year, attending a school at Town E and when their parents separated they went to a school in Town D.  Their mother relocated unilaterally to Town B.  It is unclear to me whether or not they were then enrolled in a school at Town B but I presume they were as the mother’s presence in Town B was for a reasonably lengthy period.  The children then returned to Town D, went to school again in Town D and then the mother unilaterally relocated again to Town B. I assume the children are now in school in Town B. 

10. Those changes are extremely disruptive, upsetting and harmful for these children, and I am of the view expressed by the Court Child Expert that another change, even if the mother was willing to comply with such an order is likely to be harmful for these children.  Those are the factors I give most weight to. 

11. I also have regard to the additional considerations in s 60CC(3) of the Act, and I will briefly refer to the ones that I consider appropriate or of most significance.

12. In relation to s60CC(3)(b), the nature of the relationship of the children with each of their parents, the material in the Child Impact Report suggested that the relationship of these children with both parents is less than ideal and affected by extraneous factors. These factors include possible exposure to family violence and possibly of the mother undermining the relationship between the children and the father. The mother frankly told the Court Child Expert that she discussed the proceedings with the children.

13. In relation to s 60CC(3)(d), the likely change in the children’s circumstances, including the likely effect on the children of any separation from their parents, the orders I propose to make will see something of a separation between the children and their father. At least, there will not be the substantial and significant time contemplated by the earlier orders.

14. The practical difficulties considered in s60CC(3)(e) is a matter of real significance as there is a great deal of difficulty in the children spending time with their father while they continue to reside in Town B.

15. Section 60CC(3)(f) concerns the capacity of each of the child’s parents to provide for the needs of the children, including emotional and intellectual needs. In my view, there is a real question mark about both parents under that heading but a finer examination of that factor must await trial.

16. Similar remarks can be made about s 60CC(3)(i) and the attitude to the children and responsibilities of parenthood demonstrated by each of the child’s parents. I think it is clear from what I have said that there are very serious question marks about both parents to be resolved.

17. In relation to s 60CC(3)(j) and any family violence order applying, the evidence was a little unclear about that. I understand there is still a Provisional Apprehended Violence Order or Domestic Violence Order applying to protect the mother and the children from the father.

18. In relation to s 60CC(3)(k), as I understand it, the Apprehended Violence Order is still a preliminary order, or at least an order made without hearing in Town B or Town H. I do not draw any particular inferences from that order. I am satisfied, having regard to what I have said, the orders I make will not involve supervision. The orders of this Court are intended to override the Apprehended Violence Order but only to the extent that it is necessary.

19. I should say it was pointed out to me that there is evidence that on 4 June 2021 nine firearms in possession of the father were seized by the police and remain subject to that seizure. 

20. The orders I propose to make are those proposed by the ICL and those orders will see the children spending time with the father for each of the short holidays at the end of term 1, 2 and 3. In addition, the orders the ICL proposes would see the children spending half of the long school holiday with the father beginning in December 2022.

21. The ICL proposes other orders that would permit the children to spend time with the father not necessarily in Town B, but either in Town G, Town H or Town J, which are towns within about 210 kilometres of Town B, if the father wishes to travel to Town B to have the children spend time with him. 

22. I am going make an order that the parents are restrained from physically disciplining the children, or shouting or yelling at them.  I will also make an order that the parties are not to discuss these proceedings with the children and I will also make an order that the parties are not to denigrate the other parent within the hearing of the children. 

23. I should say while this matter is set down for a trial in August 2022 it may be, having regard to the fact that the father is facing criminal charges, that the trial will be delayed or may not go ahead.  That is speculation but I think that is a distinct possibility and I take that factor into account in the orders I make.  I think it may be that a final hearing of this matter is some way away.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       10 May 2022