Espensen and Charron

FEDERAL CIRCUIT COURT OF AUSTRALIA

ESPENSEN & CHARRON

[2017] FCCA 962

Catchwords:
FAMILY LAW – Interim parenting arrangement for child aged eight years – parents separated prior to child’s birth – child has lived in Queensland with mother since birth – father lives in South Australia – father has retained child in Adelaide following holiday visit – father alleges mother has exposed child to neglect, abuse and family violence such to justify retention of child – nature of interim hearing – assessment of risk – best interests – transfer of proceedings.

Legislation:

Family Law Act 1975, ss.4(1); 60B; 60CA; 60CC; 61DA; 65DAA(5)

Federal Circuit Court Rules 2001, r.8.01

Cases cited:
Goode & Goode (2006) FLC 92-286
Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13
Slater & Light [2013] FamCAFC 4
C & S [1998] FamCA 66
Morgan & Miles (2007) FamCA 1230
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28

Applicant:

MR ESPENSEN

Respondent:

MS CHARRON

File Number:

ADC 645 of 2017

Judgment of:

Judge Brown

Hearing date:

9 May 2017

Date of Last Submission:

9 May 2017

Delivered at:

Adelaide

Delivered on:

12 May 2017

REPRESENTATION

Counsel for the Applicant:

Ms Read

Solicitors for the Applicant:

T S Lawyers & Co

Counsel for the Respondent:

Mr McGinn

Solicitors for the Respondent:

Adelaide Family Lawyers

ORDERS

The child [X] born (omitted) 2009 (hereinafter referred to as “the child”) be returned to the mother in Queensland, at a location to be agreed between the parties, no later than 6:00pm on Monday 15 May 2017 with such costs to be at the expense of the father.
The matter be transferred to the Brisbane Registry of the Federal Circuit Court on a date to be advised to the parties.

Upon the undertaking of the mother that she will not bring the child into direct physical contact with either Mr A or Mr R

Until Further or Other Order it is ordered as follows:

The child live with the mother, who is authorised by this order to make arrangements for the child’s enrolment at a primary school in the vicinity of her home in (Town A) in the state of Queensland.
The father spend time with the child for one half of the forthcoming mid-year Queensland school holiday, in Adelaide, provided the father pays the costs of the child’s travel between Brisbane, Adelaide and return.
The father have liberal electronic communication, whether by telephone or via skype or other similar means, with the child, on at least two occasions per week, at a time to be agreed between the parties and failing agreement to be at 5.00 pm Australian Eastern Time on each Wednesday and Saturday.
The parties be restrained and an injunction issue restraining each of them from abusing, denigrating or rebuking the other in the presence of the child or from permitting any other person to do so.
The parties be restrained and an injunction issues restraining each of them from discussing the proceedings in the presence of the child or from permitting any other person to do so.
Each party keep the other informed of his/her respective residential address and contact details including mobile telephone numbers and email addresses.
Each party inform the other of any medical emergency or accident suffered by the child as soon as is practicable after such emergency or accident has occurred and advise the other of all medical treatment received by the child and the name and address of the medical practitioner providing such treatment.
The mother authorise the child’s school to provide the father with a copy of his school report when it has been prepared and authorise any medical practitioner attended by the child to provide the father with details of the consultation concerned and any treatment prescribed for the child.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 645 of 2017

MR ESPENSEN

Applicant

And

MS CHARRON

Respondent

REASONS FOR JUDGMENT

Introduction

This is an urgent interim parenting application concerning the unilateral change of residence of [X], born (omitted) 2009, from (Town A) in Queensland to (Town B) in South Australia.
The parties to the proceedings are [X]’s parents – his father, Mr Espensen and his mother, Ms Charron. Mr Espensen and Ms Charron have never been married. They first met, as children, at (omitted), in 1994 and reconnected, via Facebook, in 2008. At the time, Ms Charron lived on the (omitted) and Mr Espensen lived in suburban Adelaide.
Ms Charron took to visiting Adelaide to spend time with Mr Espensen during 2008 and later that year, the two decided to live together in Adelaide. Thereafter, they had a brief and unhappy relationship, which ended when Ms Charron was six months pregnant with [X]. At this stage (June 2009), she decided to leave Adelaide and move to (omitted), where she has family connections.
Ms Charron and [X] have lived in various locations, in Queensland, since [X] was born in (omitted). Ms Charron acknowledges that her life, in this period, has not always been easy. It coincided with her forming a relationship with Mr A. This relationship produced [X]’s half-sibling, [B], born (omitted) 2012.
[B] continues to live with his mother, although her relationship with Mr A ended, in acrimonious circumstances, in early 2015. Mr A now lives in (omitted), which is approximately 1,000km north of (Town A). Court orders regulate the parenting relationship between Ms Charron and Mr A, particularly the time Mr A spends with [B].
It is Mr Espensen’s contention that Mr A and a subsequent partner of the mother, Mr K were each violent and anti-social individuals, who posed a risk to the wellbeing of [X]. In addition, the father asserts that Ms Charron is a poor and neglectful parent, who has consistently put her own needs before those of [X], which is exemplified by her poor relationship choices.
I have little doubt that the father and members of the family remain aggrieved at the mother’s decision to leave South Australia in 2008. Necessarily, this has made it difficult and expensive for Mr Espensen and his family to spend time regularly with [X]. In this context, it is Mr Espensen’s perception that Ms Charron has been difficult to deal with, in respect of [X] spending time with him.
The mother has a different perspective. It is her case that she has tried, in difficult circumstances, to maintain some form of relationship between [X] and his father. However, it is her case that Mr Espensen has only had sporadic time with [X], at best on two or three occasions each year.
In the period leading up to these proceedings [X] spent a long weekend, in September 2011, with his father; a further weekend in September of 2013; one week in Adelaide at Easter 2015; the June 2015 school holidays in Adelaide; one week, in Adelaide, in September 2015; and the second half of the 2015/2016 Christmas school holidays, again in Adelaide.
Given this amount of time, I agree that Ms Charron’s description of sporadic is an apposite one. It is also, in my view, noteworthy that [X] has gone for extended periods of time without interacting directly with his father and in 2016 had only very limited time with his father.
Against this background, the parties agreed that [X] would spend between 7 December 2016 and 4 January 2017, with his father, in Adelaide. There can be no controversy that it was implicit in the mother’s agreement to this time that [X] would be returned to her care in January of 2017. He has not been returned. There are currently no court orders formally regulating arrangements for [X]’s care.
The father commenced these proceedings on 20 February 2017. He seeks the following orders:
·[X] live with him;
·He be authorised to obtain a passport for the child and [X] be able to travel with him overseas on holidays without the mother’s consent;
·He be authorised to enrol [X] in the school of his choosing;
·The mother spend supervised time with [X].
Although filed on 20 February 2017, the record indicates that the application was served on Ms Charron, via her Queensland Legal Aid solicitor, on 3 March 2017. The application was made returnable, in Adelaide, on 27 March 2017. The choice of forum is obviously convenient to Mr Espensen but less so to Ms Charron.
Ms Charron had not filed responding material by 27 March 2017. Her Adelaide solicitor sought 21 days to respond to the application, which was adjourned to 24 April, as a consequence of this situation. For obvious reasons, the delay had no detrimental consequences for Mr Espensen but did so for Ms Charron, who had not interacted directly with [X] for a relatively long period of time by this stage.
The mother’s solicitor subsequently sought a further adjournment because of a delay in filing and serving answering documents. As a consequence, the matter was further adjourned to 9 May 2017, at 3:15pm, at the joint request of the parties.
The mother responded to the father’s application on 21 April 2017. On an interim basis, she seeks the following orders:
·[X] be immediately returned to her care and failing his delivery, a recovery order issue;
·[X] live with her;
·[X] spend time with and communicate with his father at times and on conditions as agreed between the parties;
·An injunction issue restraining the father from removing [X] from her care or from the Commonwealth of Australia;
·The case be transferred to the Brisbane registry of the Court.

Issues and principles applicable

The obvious and immediate issue for the court’s determination is where and with whom of [X]’s parents, [X] should live. This decision is to be made at an interim hearing stage.
In general terms, Mr Espensen contends that [X]’s care is at risk of being compromised, if he is returned to Ms Charron’ immediate care. For her part, Ms Charron contends that Mr Espensen is intent on alienating [X] from her affections and those of [B], by bestowing all manner of largess upon [X], which has included the provision of exciting holidays and related activities and the offer of a holiday in (country omitted) later in the year.
Underpinning Ms Charron’s position is her assertion that she has been [X]’s undisputed principle provider of care since the date of his birth, during which period he has spent limited time with his father. In these circumstances, she submits that it is likely to be emotionally injurious, for [X], if this longstanding status quo is upset, as a consequence of the unilateral actions of Mr Espensen, which have resulted in [X] being separated from both his mother and half-sibling.
In this context, it will be necessary for the court to apply (and explain to the parties, as best it can) a number of legal principles and concepts, which can be summarised as follows:
·The nature of an interim hearing and the limits it presents to the court’s fact finding capacity at this stage of proceedings;
·How the court assesses possible risks, arising to a child, at the interim hearing stage;
·What considerations apply, when it is established that a parent has taken a unilateral action, which has resulted in a significant level of change in a child’s living arrangements, particularly how easily that child can interact with his/her other parent;
·How the court determines a child’s best interest, whether or not the presumption of equal shared parental responsibility is applied.

a) Interim hearings

Interim hearings very often arise against a background of serious family crisis and controversy. Given the nature of the particular crisis involved, the court may be required to make any necessary determination expeditiously. The need for such expedition dictates that the hearing concerned should be truncated. As a consequence such a shortened hearing does not allow any extensive examination of the relevant evidence, particularly through a process of cross-examination.
Given the nature of the hearing, the various factual issues in dispute, between the parties, cannot be resolved in the context of these interim proceedings. In addition, at the interim hearing stage it is rarely the case that there has been sufficient time for any independent and expert evidence to be prepared, evaluating the case from the perspective of any children concerned, particularly in the context of the nature of their relationship with each of their parents and what is their preferred outcome in the case, if any and what factors are influencing such views.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[1]
[1] See Goode & Goode (2006) FLC 92-286 at 80,901 [68]
Accordingly, at the interim stage, the court is directed to look to less contentious matters, such as any facts which are either agreed or obvious and issues which are not in dispute, particularly prior care arrangements and the current circumstances of the parties and any children concerned.

b) Assessment of Risk

Cases involving serious allegations of child abuse, neglect or exposure to family violence pose particular difficulties for the court, at the interim hearing stage, given the limitations implicit in such hearings. However, notwithstanding the evidentiary difficulties, arising at the interim stage, the court must still nonetheless make a decision and put in place the orders, which it considers will best regulate the situation, so far as any child is concerned, according to the relevant principles contained in the Family Law Act 1975 (Cth).
In this context, it is clear that the court is required to consider child protection issues, in its decision making processes, and should not defer its responsibility, in this regard, because of deficiencies in the evidence before it or, more importantly, because it is not in a position to resolve definitively controversies arising between the parties, including in respect of potential child abuse issues.
In Deiter & Deiter[2] the Full Court said as follows:
“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.”
[2] See Deiter & Deiter [2011] FamCAFC 82 at [61]
In SS v AH[3] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:
“Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
[3] See SS v AH [2010] FamCAFC 13 at [100]
In Deiter, the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and, as in the present case, the risk of a child being exposed to a parent’s sexual behaviour or more seriously the child being sexually assaulted or used as an object of sexual gratification.
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [4]

c) Relocation

[4] Slater & Light [2013] FamCAFC 4 at [37]

Cases involving the relocation of a child far away from one of his or her parents are particularly difficult for the court, both at the interim and the final hearing stage. For obvious reasons, issues to do with relocation invariably have very significant implications for the welfare of children, particularly in terms of how they maintain parental relationships.
In this case, it is clear that [X] has lived, in Queensland with his mother, for the vast majority of his life. This arrangement was brought to an end by the unilateral actions of Mr Espensen, who elected not to return [X] to his mother’s care. Accordingly, the case raises issues to do with relocation. Axiomatically, [X] will not be able to maintain his previous level of relationship with both his mother and [B], if he remains living in Adelaide, the outcome sought by his father, on the basis of child protection concerns.
Accordingly, the issue for the court is what considerations should apply to this difficult decision, which has obvious and significant implications for [X]’s welfare and how it should be approached, at the interim hearing stage, where the evidence of each of the parties is limited and their competing contentions are essentially untested.
The Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.[5]
[5] See C & S [1998] FamCA 66
Relocation has implications for the quality and intimacy of the parental relationship a child has with the absent parent. These concerns are particularly pressing in respect of young or immature children. In this particular case, I bear in mind what was said by Boland J in Morgan & Miles.[6] Her Honour confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“…It [is] highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases”.

d) Best Interests

[6] Morgan & Miles (2007) FamCA 1230

At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.
In deciding to whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.
There are two primary considerations, which are as follows:
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.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[7]
[7] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[8] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[9]
[8] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[9] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act. It means:
“(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
As I understand Mr Espensen’s case, it is his position that [X] has suffered abuse, within the definition set out above, as a consequence of being assaulted by Mr A; having been exposed to family violence, whilst in his mother’s household; and suffering serious neglect from his mother.
On the other hand, it is Ms Charron’s positon that Mr Espensen’s actions have deprived [X] of having the benefits of having a meaningful relationship with his mother. In addition, she contends that it is not likely to be in the child’s best interests to be subject to a significant change in her long term arrangements and to be separated from those individuals – herself and [B] – who are most significant to him. [see section 60CC(3)(b) & (d)]
The legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode can be summarised as follows:
·consider the section 60CC matters relevant;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.

Agreed and/or obvious facts

The major evidentiary controversies arising in this case, centre on the quality of Ms Charron’s household, particularly whilst she shared it with Mr A and its implications for the welfare of [X]. Necessarily, Mr Espensen has little personal knowledge of these matters. Rather, he relies on what others, including [X], have told him about it.
Notwithstanding this significant evidentiary controversy, in my assessment, there are many salient factual issues, arising in the case, which must be regarded as incontrovertible. These include the following:
·Ms Charron has been [X]’s primary carer, since his birth. This arrangement was interrupted by the unilateral actions of Mr Espensen;
·Mr Espensen has only had intermittent contact with [X]. Prior to the current change of arrangements, Mr Espensen had not interacted directly with [X] for a period of approximately 12 months;
·The mother and Mr A were involved in a relationship between early 2011 and early 2015;
·On the conclusion of this relationship, Mr A commenced proceedings against the mother seeking parenting orders in respect of both [B] and [X];
·As a consequence of these proceedings, Mr Espensen was joined as a party to them. However, upon Mr A abandoning his application, so far as [X] was concerned, the father took no part in the proceedings. In particular, he declined to seek his own specific parenting orders in respect of [X];
·As a consequence of these proceedings, Mr Espensen was provided with a copy of Ms Charron’s affidavit evidence, which contained serious allegations against Mr A. These allegations concerned the following:
Ø In July 2011, Mr A cornered Ms Charron in a bedroom and threatened her;
Ø Mr A was a social marijuana user;
Ø Mr A lost his temper with [X] and hit him on the legs and backside, causing handprint bruising on his skin. Ms Charron does not indicate precisely when this incident occurred;
Ø On another occasion [X] suffered a broken arm, whilst with Mr A. Mr A indicated to Ms Charron that [X] had fallen off a bed;
Ø During the latter stage of Ms Charron’s relationship with Mr A, he became financially irresponsible and his use of marijuana increased.
·Mr Espensen elected not to take an active part in the proceedings between Ms Charron and Mr A and up to this stage has never sought any formal orders in respect of [X];
·During 2016, [X] attended [School A]. His report for both the first and second semester of that year is satisfactory and there are no unexplained absences from attendance;
·In November of 2016, [X] was placed on the elective surgery waiting list, at the (hospital omitted), for an adenotonsillectomy, insertion of bilateral grommets and cautery of his septum;
·Between 2011 and January of 2016, seven notifications of child abuse were made to the Department of Communities, Child Safety & Disability (Queensland) in respect of children, including [X], who had been in the care of Ms Charron and Mr A. None of these notifications have proceeded to formal investigation. One concerns an allegation of sexual interference of [B];
·Mr A currently lives in (omitted);
·Mr K currently lives in (omitted), on the Central New South Wales Coast;
·Ms Charron currently has part time employment in an (employer omitted);
·The parties agreed that [X] would fly to Adelaide on 7 December 2016 and be returned to the mother’s care on 4 January 2017.

The father’s case and allegations

Notwithstanding the date on which these proceedings were commenced (20 February 2017), the father’s affidavit in support of his application was deposed on 6 January 2017. In my assessment it is not an easy affidavit to follow. However, Mr Espensen’s complaints against Ms Charron can be summarised as follows:
·She maintained an untidy and dirty household, in Adelaide, prior to the parties separation and continued to do so when [X] was an infant, in (omitted), on the occasions when he came to visit;
·After Ms Charron became involved with Mr A, she adopted a poisonous attitude towards Mr Espensen;
·The respondent’s sister informed him that [X]’s arm had been broken by Mr A swinging [X] around by his arm till it broke. He reported this information to the police, but his complaint was not taken seriously;
·[X] disclosed to his paternal grandfather that during an argument between his mother and Mr A, the latter had thrown a pot of boiling water at Ms Charron, which missed her but caused scalding to [X].
·[X]’s dental hygiene has neglected;
·The mother utilises neighbours to care for [X], when she is at work;
·Mr K is a violent and antisocial person;
·Because Mr A and Ms Charron are the parents of [B], there is always a risk that [X] will be further exposed to a violent outburst between Mr A and Ms Charron.
Mr Espensen’s position can be summarised by the following extract from his initial affidavit:
“Given that I now have grave concerns for the safety and welfare of [X], I will not be allowing him to return to Queensland to live with his mother. I believe Ms Charron has a complete disregard for his safety, and constantly places him in risky situations. She has exposed him to family violence and lied to me about the cause of his injuries to protect herself and her partners.”[10]
[10] See father’s affidavit filed 20 February 2017 at paragraph 42
At 10:44pm on 7 May 2017, Mr Espensen filed, via electronic means, a further affidavit. Although the court rules mandate service of such documents be effected seven days prior to the date scheduled for the relevant application, I elected to receive the document concerned because of the moment of the matter from the perspective of each of the parties concerned.
The affidavit was directed to refuting matters raised by Ms Charron in her responding material. The affidavit also raised new allegations regarding Mr A, Ms Charron and her parenting of [X]. Attached to the affidavit were a number of documents, including photographs of [X] and some of his paternal relatives.
Mr Espensen deposes that, after being informed of the contents of documents subpoenaed from DOCS(Qld) he asked [X] if he had been exposed to any sexual abuse. This question allegedly led to a disclosure from [X] that Mr A had sexually abused him by touching his penis.
Mr Espensen has further deposed that [X] is now adamant that he does not wish to return to Queensland, but prefers to stay in Adelaide and continue to attend [School B], where he has made many close friends. In addition, Mr Espensen asserts that [X] has expressed many concerns about his mother’s treatment of him. As a consequence of this behaviour, [X] flatly refuses to speak to his mother, in spite of his (the father’s) encouragement to do otherwise.
Mr Espensen has arranged for [X] to attend upon an audiologist and a general practitioner. In the doctor’s opinion, [X]’s ears are normal and his tonsils are not enlarged. The audiologist concerned was of the view that [X]’s hearing was normal. In this context, Mr Espensen is concerned that Ms Charron has obtained inappropriate advice about [X]’s medical needs in Queensland, which is possibly indicative of a neglectful attitude towards him.
A dentist, who examined [X]’s teeth, was of the opinion that [X] had extensive tooth decay, which required multiple extractions and fillings. Given this material, Mr Espensen does not accept the mother’s assertion regarding the need for [X] to have surgery in Queensland and submits that the dentist’s report bears out his assertion that Ms Charron has neglected the child’s dental requirements.
Mr Espensen has also provided the court with several photographs of [X] involved in a variety of activities. These include a boating excursion on (omitted); a visit to a swimming pool; a visit to (omitted); and a visit to his paternal grandparents’ farm, in rural New South Wales, which included a pony ride.

The mother’s case and allegations

It is Ms Charron’s evidence that she is no longer in a domestic relationship with either Mr A or Mr K. In respect of Mr K, she asserts that she never formally shared accommodation with him. It is her case that given both individuals concerned live many hundreds of kilometres away from her, neither of them can be considered to constitute any degree of any significant risk to [X]. In any event, she is prepared to undertake to the court not to bring [X] into direct contact with Mr A or Mr K.
Ms Charron has deposed that [X]’s arm was broken during the time she was in a relationship with Mr A. She was not present when the incident occurred. It is her position that the injury occurred accidentally and when it was detected, [X] received appropriate medical treatment, which included his arm being placed in a cast for three weeks.
Ms Charron denies that Mr A ever threw boiling water at her. She acknowledges that the two had an argument shortly prior to their separation, at the dinner table. During this incident, she asserts that [X]’s dinner spilt on his arm, but there was no scalding or other injury form the incident.
It is Ms Charron’s case that she has provided the vast majority of care for [X], with very modest financial support from Mr Espensen. It is her further case that [X] and [B] have a close and loving relationship. From her perspective, [B] is missing his older brother and she would anticipate that [X] is in the same position, so far as [B] is concerned.
It is Ms Charron’s perception that Mr Espensen is attempting to alienate [X] from her affections. In this context, she is particularly concerned about Mr Espensen’s application for a passport for [X]. She asserts that [X] has been told of a prospective holiday in (omitted), which she fears has the potential to unduly influence [X]’s views, given his tender years. In this context, she is concerned that [X] has informed her that it is his perception that he was unable to attend such a holiday a few years ago because of her objection.
Ms Charron describes herself as being a loving and caring mother. It is her evidence that she has been occupying her home, in (Town A), for a period of three years and it provides appropriate accommodation for [X]. It is her case that she has sought appropriate medical advice in respect of [X]’s grommets and has accepted the recommendations of the doctor concerned in respect of surgery.

Conclusions

At the centre of this difficult case is the court’s responsibility to assess the degree of risk, arising for [X], if he is returned to his mother’s care. The father’s allegations of exposure to family violence and abuse relate to Mr A primarily and to a lesser extent to Mr K. The evidence indicates that Ms Charron has ceased her relationship with both these individuals.
In these circumstances, in my view, the risk of [X] being exposed to family violence, whilst in his mother’s care, is not a significant one, given the distance both Mr A and Mr K live away from her home and the fact that she is prepared to proffer an undertaking that she will not bring the child into direct contact with either. Certainly, in my view, the risk arising is not one which can be characterised as being unacceptable for the court to countenance.
In my view, at the same time as the court assesses the risk of returning [X] to his mother’s care, it is also necessary to examine possible risks, arising for [X], if he remains with Mr Espensen in Adelaide. Necessarily, this assessment must involve an examination of the likely level of [X]’s relationship with both his mother and [B] [see section 60CC(2)(a) & 60CC(3)(b)].
It is controvertible that [X] has lived with his mother for most of his life. In these circumstances, it seems highly improbable that he does not have a close degree of emotional connection with her and his half sibling, [B]. These relationships are likely to be among the most significant ones pertaining to [X]. Given these circumstances, I am greatly concerned at the actions of Mr Espensen, which have resulted in these relationships being significantly curtailed, in the short to medium term.
At this stage, Mr Espensen has no concrete proposals as to how Ms Charron can physically interact with [X]. In addition, Mr Espensen is not in a position to rebut Ms Charron’s assertion that it was explicitly agreed between him and the mother that [X] would be returned to Ms Charron’s care in early January of this year.

Clearly, Mr Espensen has reneged on this agreement. In these circumstances, it is incumbent upon the court to examine the degree of emergency, which confronted Mr Espensen and determine whether his chosen response to the situation arising was a reasonable and proportionate one. Regrettably, I have reached the conclusion that it was not so.
After the issues of family violence and sexual abuse, which relate primarily to Mr A are removed, the concerns of Mr Espensen centre on his allegations that Ms Charron is a neglectful and incompetent parent. Apart from Mr Espensen’s allegations, there is little, if any, collateral evidence to support his case. Certainly, there is no evidence to indicate the active involvement of the child welfare authorities in Ms Charron’s parenting of either [X] or [B].
In addition, Mr Espensen provided at least some form of passive acquiescence to the fact that [X]’s interests were best served by him remaining in the care of Ms Charron by his election not to take an active role in the proceedings between Mr A and Ms Charron, which initially also concerned [X] but resulted in [B] being placed in the predominant care of his mother.
So far as the issue of [X]’s grommets is concerned, it appears that there is a difference of opinion between the Queensland and South Australian doctors. The allegations concerning [X]’s dental hygiene are obviously concerning. However, in my assessment, they are not of such moment to justify an immediate change of [X]’s living arrangements, particularly given the longstanding nature of those arrangements [see section 60CC(3)(d)].
At this stage, I am not in a position to conclude definitively that the dental issues fall obviously within the definition of serious neglect contained in section 4(1) of the Act. The evidence presented in respect of the issue is not clear and I am unaware of any financial ramifications, arising for Ms Charron, in respect of her ability to provide an optimal level of dental care for [X].
I concede that it is possible the court may ultimately conclude, at final hearing, that Ms Charron’s parenting of [X] has been significantly compromised over a significant period of time and, as a consequence, Mr Espensen is a preferable custodian for [X]. However, at this juncture, in my view, this must be regarded as a final hearing issue, given the contested nature of the evidence currently available to the court.
In this context, I do not consider that this issue should be determined against a background of a recent development, initiated by Mr Espensen, which has the consequence of significantly altering [X]’s relationship with both his mother and his half sibling. The court must be careful not to condone such unilateral actions other than in exceptional circumstances.
In my view, such exceptional circumstances do not exist in this case. Mr Espensen did not attempt to discuss his concerns directly with Ms Charron. Rather, whilst [X] was in his care, he consulted his solicitor and prepared his application with a view to presenting Ms Charron with a fait accompli so far as [X] being returned in time to start the 2017 school year.
Considerable controversy exists between the parties concerning [X]’s view as to his preferred outcome in the case. In this context, I bear in mind that [X] is a child who is approaching his eighth birthday. As such, he must be regarded as being vulnerable because of his immaturity. More significantly, he is currently at the centre of a bitter and emotionally charged dispute between his parents. Such a situation must place him in a situation of competing loyalties.
In this context, I do not consider that I can easily dismiss Ms Charron’s claims that Mr Espensen is intent on causing [X] to become aligned with him through the offer of possible inducements, such as the prospect of an overseas holiday to (omitted). In addition, although I am not in a position to make positive findings in respect of the issue, given the animosity which has existed between the parties over many years and the current level of conflict, I consider that I would be naïve to reach any conclusion that Mr Espensen is likely to be supportive of [X] being able to interact easily with his mother, if he remains living in South Australia.
At this stage, in my view, the appropriate mechanism to assess [X]’s views is through a family assessment. Again, such an assessment should be facilitated on a level playing field not one skewed to the advantage of one parent, over the other, through any process of self-help.
It is a flavour of Mr Espensen’s position that [X] is now well settled in his care and in his attendance at the [School B]. I am concerned at the time, which has elapsed, since Mr Espensen retained [X] in early January of this year. I appreciate that this situation may create issues in respect of the seamless return of [X] to his mother’s care in Queensland. Obviously, it will be disruptive for [X] to leave [School B], at short notice.
However, in my view, Mr Espensen has been complicit in engineering this delay. In these circumstances, in my view, it would be both contrary to public policy and not necessarily in [X]’s interests, if the court was to allow Mr Espensen the advantage of this delay. Regrettably, extreme actions of self-help, taken in respect of a child, without consultation with the other parent concerned, have the potential to create disruptive outcomes, when the court is called upon to sort out the consequences of such unilateral actions.
Given my overall assessment of the evidence, as it currently stands, particularly the polarised positions of the parties and their mistrustful attitude to one another, I have come to the conclusion that it would not be appropriate, at the interim stage, for the presumption of equal shared parental responsibility to be applied in respect of [X]’s parenting.
In all these circumstances, after having attempted to assess all the relevant section 60CC factors together with the applicable authorities, I have come to the conclusion that [X]’s best interests will be served if he lives with his mother, pending the final hearing of the parties’ competing applications and the production and examination of any necessary further evidence.
I reach this conclusion primarily because of the significance of [X]’s relationship with his mother and my assessment that it would not represent an unacceptable risk to [X]’s welfare and safety, if he is returned to Queensland. I acknowledge that it is probable that [X] also has a significant level of relationship with his father and his father’s current partner, which has developed over the past five months, during which he has been retained in Adelaide.
However, one significant difficulty with the father’s position is that it offers scant information as to how [X] can maintain his relationship with his mother and [B], if he remains in South Australia pending final hearing. In addition, as already pointed out, this situation of apparent tactical advantage, to Mr Espensen, has come about through his own unilateral agency.
During the course of the interim hearing, the paternal grandfather indicated his availability to return [X] to Queensland and his mother through his agency. He indicated that he would probably be leaving over the forthcoming weekend. In those circumstances, I will direct that [X] be delivered up to the mother, at a location to be agreed between the parties, no later than 6:00pm on Monday 15 May 2017 and the father bear the necessary costs of such return.
I will also direct that the father spend time with [X], for one half of the forthcoming mid-year Queensland school holiday, in Adelaide, provided Mr Espensen pays the costs of the child’s travel between Brisbane, Adelaide and return. I will also make an order in respect of regular electronic communication between father and child.
I will take up the mother’s offer of an undertaking in respect of her not bringing [X] into contact with either Mr A or Mr K. I will also restrain each of the parties from denigrating or abusing the other in the presence of [X] or from discussing these proceedings with him in order to emphasis to each of them that the dispute between them is their dispute rather than [X]’s.
The mother seeks the transfer of these proceedings to the Brisbane registry of the court. The matters which the court must consider in respect of this application are set out in Rule 8.01 of the Federal Circuit Court Rules 2001. The relevant matters to be considered are as follows:
“(2)   In considering an application, the Court must have regard to:
(a)     the convenience of the parties; and
(b)the limiting of expense and the cost of the proceeding; and
(c)whether the matter has been listed for final hearing; and
(d)     any other relevant matter.”
In my view, the balance of convenience favours the transfer of the proceedings, chiefly because, pending final, hearing [X] will be residing in the Brisbane area. The case will almost certainly require a detailed family assessment, which will focus on [X]. As [X] will be living in Queensland, it will obviously be easier to advance the required family report, if the proceedings are transferred to the Brisbane registry.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 12 May 2017

[2017] FCCA 962

12 May 2017

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Injunction

Costs

Remedies

Jurisdiction