Everhardt & Algeron
[2023] FedCFamC2F 1412
•2 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Everhardt & Algeron [2023] FedCFamC2F 1412
File number(s): MLC 9663 of 2023 Judgment of: JUDGE J YOUNG Date of judgment: 2 November 2023 Catchwords: FAMILY LAW – PARENTING – interim parenting arrangements – where respondent mother has unilaterally relocated with children – where applicant father seeking interim orders for mother to relocate back to local area with children – competing allegations of risk Legislation: Family Law Act 1975 (Cth), Pt VII, ss 60B, 60CA, 60CC(2), 69ZL. Cases cited: Franklyn & Franklyn [2019] FamCAFC 256
Goode & Goode [2006] FamCA 134
Marvel & Marvel [2010] FamCAFC 101
Morgan & Miles [2007] FamCA 1230, (2007) FLC 93-343, (2007) 38 Fam LR 275
Oswald & Karrington [2016] FamCAFC 152
Parks & Farmer [2012] FamCAFC 12
U v U (2002) 21 CLR 238
Division: Division 2 Family Law Number of paragraphs: 83 Date of hearing: 27 October 2023 Place: Melbourne Counsel for the Applicant: Ms Skinner Solicitor for the Applicant: TBA Law Counsel for the Respondent: Ms Damon Solicitor for the Respondent: Pear and Pair Law ORDERS
MLC 9663 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR EVERHARDT
Applicant
AND: MS ALGERON
Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
2 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Mother be permitted to relocate to a location no further than 120 kilometres from Suburb B, Victoria.
2.The children X born in 2017 and Y born in 2019, collectively the children (“the children”) live with the Mother.
3.The children spend time with the Father as follows:
(a)From 5.00pm Friday until before school Monday each alternate week commencing Friday 29 September 2023 and such time to be suspended during school holiday periods with before school changeover occurring at the children’s school and/or daycare;
(i)Where time as specified in order 3(a) occurs on a weekend which has a gazetted public holiday adjacent to the weekend day the following occur:
A.Where the Friday is a gazetted public holiday from 5.00pm Thursday until before school Monday; and
B.Where the Monday is a gazetted public holiday from 5.00pm Friday until before school Tuesday.
(b)For the Autumn, Winter and Spring short school holidays:
(i)In 2023 and each alternate year there from 5.00pm on the second Saturday of the school holidays until 5.00pm on the last Saturday of the holidays; and
(ii)In 2024 and each alternate year there from 5.00pm on the first Saturday of the school holidays until 5.00pm on the second Saturday of the holidays.
(c)In the Long Summer holidays as follows:
(i)As agreed between the parents to be times that equate to half of the long school holidays.
(d)At all other times as agreed in writing between the parents.
4.The children communicate with the Father via Facetime as follows:
(a)Each Tuesday and Thursday at 5.30pm for a period not exceeding thirty minutes;
(b)At reasonable times as requested by the children; and
(c)At all other times as agreed between the parents.
5.Both parents are restrained from deleting the Facetime App from the children’s devices.
6.Notwithstanding the preceding orders, the children spend time with each of the parents on special occasions as follows.
(a)For Birthdays each year the parent who does not have the children already in their care pursuant to the preceding orders shall spend time with the children as follows:
(i)On a week day:
A.From afterschool or 3.30pm on a non school day until 7.00pm;
(ii)On a weekend:
A.From 3.00pm until 7.00pm.
7.For the purpose of 6(a) above special occasions refers to the birthdays of the parents and the children.
8.The children spend time with each of the parents for Christmas:
(a)With the Father from 3.00pm Christmas Eve until 3.00pm Christmas Day in 2023 and alternating each year thereafter.
(b)With the Mother from 3.00pm Christmas Day until 3.00pm Boxing Day in 2023 and alternating each year thereafter.
9.Each party shall notify the other with no less than seven days prior written notice of any change of residential address, telephone numbers, email addresses or other contact details.
10.With respect to educational matters each of the parents by virtue of these Orders:
(a)be permitted to attend all school and childcare functions and events to which parents are normally invited including but not limited to concerts, sports carnivals, parent teacher interviews and any other similar occasion.
(b)to receive copies of all documents normally provided to parents including but not limited to newsletters, photographs, school reports and any other similar document.
(c)to discuss the children with their educators at any time.
(d)each parent be permitted to attend all extracurricular events and functions relevant to the children and each parent keep the other advised as to such events and provide no less than 72 hours notice thereof.
11.In relation to medical and health matters by virtue of these Orders each of the parents are at liberty to and are required to:
(a)keep the other advised at all times of any medical or health condition affecting the children or either of them.
(b)be permitted to attend any medical appointment in relation to the children and keep the other parent advised as to the same.
(c)ensure that each parent has copies of all prescriptions and medical information relevant to the children so as to ensure the children can receive any treatment reasonably and directed for them.
(d)each parent keep the other advised as to any medical health issue concerning the children and authorise the other to liaise with and speak with the children's treating practitioners about the same.
12.Each of the parents be permitted to receive copies of all medical and allied health documents relevant to either of the children.
13.Each parent immediately notify the other in the event that either child suffers a serious illness or injury whilst in their respective care.
14.Without admitting the necessity of same, the parents be restrained by injunction from consuming, using, or being under the influence of any illicit drug or substance or drinking alcohol to excess whilst either of the children are in their care and for 24 hours prior thereto.
15.The parents and their agents are prohibited from:
(a)exposing the child to family violence or any criminal activity;
(b)exposing the child to any person under the influence of illicit drugs or alcohol;
(c)posting information as to the other parent, the parenting dispute or allegations raised herein on any social media or allowing any other person to do so;
(d)denigrating the other parent or any members of their family to the child or in the presence of the child.
16.The parents communicate using the parenting application AppClose.
17.All changeovers which do not occur at the children’s school or daycare occur at the McDonald Restaurant located at C Street, Suburb D.
THE COURT ORDERS BY CONSENT THAT:
18.Both the Mother and the Father’s existing hair samples provided at a hair drug and alcohol testing purposes pursuant to the orders dated 27 September 2023 be re-tested by way of a Drugs of Abuse Test for the purpose of testing for illicit drugs and alcohol.
19.In the event that the parent’s previous samples cannot be re-tested in accordance with order 18 herein, within 14 days of the date of these orders, the Mother and Father make appointments and attend for hair collection at an Australian Workplace Drug Testing Services (‘AWDTS’) clinic or nominee for hair drug and alcohol testing purposes for a Drugs of Abuse Test. Collection is to be conducted by a qualified and certified collector. Chain-of-custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:
(a)The Mother and Father are required to maintain their head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;
(b)Within seventy-two (72) hours of the date of these orders, the Mother and Father are required to make an appointment with AWDTS by telephoning … for the purpose of providing a hair sample for hair drug and alcohol testing purposes;
(c)Each party and their legal representatives is at liberty to provide AWDTS with a copy of these orders;
(d)The Mother and Father are to attend at an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from the Mother and Father at the earliest available appointment time within seven (7) days of receiving written notice to undertake hair collection for hair drug and alcohol testing purposes from the other party or their legal representatives;
(e)Written notice to undertake hair collection for hair drug and alcohol testing purposes may be sent to the each party care of their solicitor’s email address and shall be deemed to have been received by the party at the date and time it is sent via email.
(f)The Mother and Father are to provide the collector with photographic identification to be recorded before each hair collection and a copy of these Orders.
(g)The hair drug and alcohol test may screen for alcohol, eTG and prescription and non-prescription drugs of abuse including illicit drugs, cannabis and metabolites;
(h)AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug and alcohol testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with the International Society of Hair Testing (SOHT) guidelines, costs and time required for results to be made available; and
(i)All costs associated with any hair drug and alcohol testing shall be met by the Father.
(j)These Orders hereby authorise AWDTS (or nominee) to provide the results of each test directly to both parents (and any legal representative of the parents or either of them) and any Independent Children’s Lawyer or Family Report Writer.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG:
INTRODUCTION
Before the Court is an Application for interim parenting arrangements regarding X, born in 2017 and aged 6, and Y, born in 2019 and aged 3, nearly 4.
Pursuant to consent orders made on 27 September 2023, the children currently live with the respondent mother and spend time with the applicant father each alternate weekend from 5pm Friday until before school or 9am, whichever is applicable, on Monday.
The mother has recently relocated with the children from Suburb B to Suburb E. Previously, the parties lived approximately 15 minutes apart. The mother’s relocation has increased the distance between the parties by a considerable amount, with the parties now living approximately 1 ½ to 2 hours apart.
The applicant father is seeking interim orders that the mother relocate with the children back to within 60 kilometres of F School, being the school which X attended prior to relocation, and for equal shared care. The respondent mother is seeking interim orders essentially maintaining the current arrangements.
FACTS
The parties’ relationship
The father is 28 years old and works full time as a tradesperson. The father has repartnered and lives with his partner, Ms G, in Town H.
The mother is 28 years old and is currently unemployed. The mother has repartnered and lives with her partner, Mr K, in Suburb E.
The parties commenced cohabitation in or around 2016.
X was born in 2017.
Sometime in 2019, the parties purchased a home in Town J (Town J property).
Y was born in 2019.
The mother alleges family violence by the father during the relationship.
Both parties make mutual allegations of drug and alcohol abuse throughout the relationship.
The parties separated on a final basis in April 2022. The mother moved out of the Town J property with the children, living with a friend in Suburb B. The father remained living in the Town J property.
The Town J property was sold in or around late 2022, following which the father moved out.
Parenting arrangements post-separation
The parties attended a Family Dispute Resolution Service (FDRS) through Victoria Legal Aid on 23 August 2022.
The parties entered into a parenting plan which provided, in summary, for the following:
·The parties to have equal shared parental responsibility.
·The children live with the mother.
·The children spend time with the father:
·In week 1, from after-school on Friday until 5pm Sunday
·In week 2, from Wednesday evening after school until Friday morning before school.
·The children communicate with the father via FaceTime as follows:
·Each Tuesday at 5.30pm; and
·Each alternate Sunday at 5.30pm.
The parties mutually allege that there has been a break-down in their co-parenting arrangement and in the implementation of the parenting plan.
The mother’s unilateral relocation
Sometime in mid-late 2023, the mother unilaterally relocated with the children from Suburb B to Suburb E, approximately 110 kilometres from Suburb B, or 140 kilometres from the father’s home in Town H. The mother says she relocated in the school holidays. It is uncontested that the mother did not inform the father that she intended to relocate or that she had relocated.
THE FATHER’S CASE
The father seeks interim parenting orders that the mother relocate with the children to within 40 kilometres of F School. The father seeks orders for the children to spend time with both parents in an equal shared care arrangement, and for the parent not spending time with the children to be permitted to call the children each day between 6pm and 6.30pm. He seeks further orders that an existing hair sample of the mother be retested for illicit drugs, or in the alternative, for the mother to undergo a further hair follicle test.
It is the father’s case that the mother’s relocation has significantly impacted the children’s time with him, and that he is no longer able to see the children mid-week as was originally agreed in the parenting plan. It is the father’s evidence that he was unaware of the mother’s relocation until the directions hearing on 27 September 2023, when the mother’s lawyer informed the father’s lawyer of the relocation.
The father submits that the mother has behaved erratically and continuously failed to provide a stable home environment for the children, with the mother unable to put the children’s needs before her own. The father submits the children should therefore spend time in an equal shared care arrangement to provide the children with stability, and that relocating back to within 40 kilometres of F School would achieve this.
The father relied on the following documents:
(1)Amended Application for final and interlocutory orders filed 20 October 2023; and
(2)consolidated affidavit of the father filed 20 October 2023.
THE MOTHER’S CASE
The mother seeks interim parenting orders that she be permitted to relocate to a location “no further than [120] kilometres from [Suburb B], Victoria”. She seeks further orders that the children live with her, and spend time with the father each alternate weekend, from 5pm Friday until before school on Monday.
It is the mother’s case that she relocated with the children in the context of the father engaging in a “concerted and continuous attack” on her credibility and parenting capacity in their regional area, which caused significant damage to her mental health. The mother submits that her relocation has improved her capacity to return to work and provide for the children.
The mother relied on the following material:
(1)Response to initiating application filed 24 October 2023;
(2)affidavit of the mother filed 24 October 2023; and
(3)Notice of Child Abuse, Family Violence or Risk filed 24 October 2023.
ISSUES IN DISPUTE
Following discussions between the parties orders in relation to further drug and alcohol testing by the parties were agreed, as were certain ancillary orders in relation to the parties’ attendance at school and daycare activities and notification of change of address and other contact details.
Accordingly, the issues in dispute are:
(1)the relocation of the mother;
(2)the time the children spend with the father;
(3)frequency of contact with the children by the non-custodial parent.
SUMMARY
In summary, I have determined to make the orders sought by the mother.
My reasons are set out below.
FAMILY VIOLENCE
The mother alleges that the father has engaged in family violence.
The mother deposes to the father’s behaviour becoming abusive and erratic when drinking alcohol and being fearful for her safety and that of the children and to a number of incidents involving violence. The mother particularly deposes to an incident when Y was weeks old and X was around 3 years old, during which the father became enraged and kicked a sliding door with such force that it came off its tracks and landed on the mother’s foot, breaking her foot (Kicking Incident). On the material before the Court the Kicking Incident appears to have occurred approximately 2 years ago.
The mother’s evidence is that in late 2022 she obtained an interim family violence intervention order against the father. That order indicates that the father was not present at court, was not served with the order and did not consent to it. There are no particulars of the alleged family violence which led to the order being made. Other material before the Court indicates that application was struck out because the mother did not attend court for the final hearing.
The mother’s further evidence is that in late 2023 a final personal safety intervention order was made against the father’s partner and a full interim family violence intervention order was made against the father, which is due to return to court in early 2024. Those documents are annexed to the mother’s affidavit. They indicate that neither the father nor his partner were present in court for the making of the respective orders, were served with the documents or agreed to the orders being made. Further, the allegations of family violence against the father and the allegations made against the father’s partner are not particularised, other than in relation to the Kicking Incident.
Mother’s evidence is that following the Kicking Incident she has sought assistance and counselling through L Health Care. Annexed to the mother’s affidavit is correspondence from a specialist family violence practitioner and correspondence from a family violence children’s support worker, both from L Health Care. These correspondences do not contain any particulars of the family violence which the father is alleged to have engaged in.
The mother also alleges that the father bites the children leaving bruises on the children’s limbs. In support of this allegation the mother annexes to her affidavit a photograph that she says demonstrates this. The photograph appears to demonstrate the left arm of a young child with a bruise on the child’s arm. The mother does not depose to which of the children she asserts the photograph is of, nor when the photograph was taken. Further, the photograph is not date or time stamped. The child in the photograph appears to be wearing a ‘onesie’, which would indicate that the child is a baby or, at most, a toddler. The child’s limb also has the appearance of that of a baby or very young child. I note that the children are currently 6 and 3 years old. Additionally, the bruise is, relative to the child’s arm, not large.
The mother also asserts that the father withholds child support when he has to pay for things for the children. The father conceded that in July 2022 he off-set expenses against child support payments but otherwise says has been consistently paying child support to the mother of $900 per month.
MOTHER’S UNILATERAL RELOCATION
As set out above, it is uncontested that the mother unilaterally relocated with the children to Suburb E without notice. The father submits that this demonstrates a contempt for the court processes in circumstances where there was an Application on foot, as well as the mother prioritising her own wants and needs over those of the children. Counsel for the mother conceded that the mother had “done the wrong thing” in relocating the children unilaterally and without any prior notice or discussion with the father.
In her affidavit the mother says that she relocated to Suburb E so that she could reside in an environment where she and the children feel safe. I have set out above the mother’s evidence regarding the allegations of family violence she makes.
She also says that the relocation will hopefully allow her to return to some form of paid work and therefore better provide for the children. She is, however, still unemployed and did not depose to doing more than having had “preliminary discussions” with a former employer about rejoining that organisation.
The mother also says that due to the constant vilification of her by the father and his partner and the constant interrogation by the father of her friendship group, it had become impossible for her to live in their regional area. Her evidence is that the father and his partner have undertaken a “slur campaign” against her in the local community making it extremely uncomfortable for her to engage in that community. The mother’s evidence is that the father’s partner has abused her. Counsel for the mother submitted that the Court needed to consider this matter through “a small town lens”. There is, however, no evidence before the Court of what the mother says has been said or done by the father and/or his partner to engage in the “slur campaign” or to vilify her, no particularisation of the abuse she says the father’s partner has engaged in, nor any evidence of the alleged interrogation of the mother’s friends.
Further, in her material the mother did not depose to with whom she lives, the nature of her living arrangements nor the current schooling and day care arrangements for the children. In response to questions from the bench regarding these matters, Counsel for the mother informed the Court that the mother was living with her new partner, Mr K, in rented accommodation, X is attending Suburb E School and Y is attending a local day care.
The mother’s evidence is that the children reside in a three bedroom house and each have their own rooms.
The father’s evidence is that given the distance between the parties’ respective residences he will no longer be able to spend mid-week time with the children and that travel from and to school and day care on a Friday and Monday will require extensive travel by the children and require them to be woken at 5.30 am on Monday morning.
The father’s further evidence is that prior to relocation the children had a supportive community surrounding them, including the extended family of both parties and friends. He also says that the children have a close relationship with Ms G and her parents.
The mother’s evidence is that she has repartnered with “a wonderful man who treats the children and me well and displays none of the controlling behaviours I experienced with [the father].”
DRUG AND ALCOHOL USE
The father makes allegations of illicit drug and excessive alcohol use by the mother.
The father deposes to a number of incidents, including incidents on:
·early 2023, when facetiming the children to say good night the mother was giggling and laughing uncontrollably, her eyes were unfocused and she appeared “spaced out”. He says there were several empty beer bottles on the bench;
·early 2023, when facetiming the children to say good night the mother and children were not at home, the mother said she was at a friend’s house, the mother’s eyes were bulging, her jaw was moving side to side, she was “very alert, chatty and speaking very fast”. The father says that the mother “looked like she has used [illicit drugs]”;
·early 2023, the father received telephone call informing him that the caller had arranged to buy illicit drugs from the mother’s sister’s partner (Mr M) and that the illicit drugs had been delivered by the mother at the agreed drop off-time. X and Y were in the mother’s car at the time. The caller identified Mr M by name and described the colour of the mother’s car and X and Y’s appearance;
·mid-2023, when retuning the children, the mother was slow to answer the door and told the father that she was asleep and that she was “wrecked” because she went out clubbing the night before.
The father says he reported these incidents to Child Protection and police at the time.
As set out above, the mother also alleges excessive use of alcohol by the father and associated family violence.
Pursuant to orders made on 27 September 2023, both the father and the mother have undergone hair follicle testing for illicit drugs. Both tested negative for illicit drugs, opioids and marijuana. The mother also undertook an alcohol urine screen which did not detect the presence of ethanol. Further, both have agreed to undertake further hair follicle testing for excessive alcohol use and the mother has also agreed to testing for illicit drug use.
THE CHILDREN
The father deposes to X being frequently late for school when in the mother’s care. He deposes to X telling him that he was late for school because “Mum wouldn’t wake up from bed”. He says that the mother told him X did not go to school in mid-2023 because he was “too tired” but says that the mother was out drinking the night before and he believes that X did not go to school because the mother was hungover. In support of this assertion, the father annexes to his affidavit a photograph of the mother at a night club which he says was sent to him by a mutual friend. The photograph is not timed or date stamped and the father does not to depose to whom he received the photograph from.
Annexed to the father’s affidavit is a screenshot of X’s student history report from F School for the period early 2023 to late 2023. That report demonstrates that in that period X has been absent from school for 5 days and late on 29 occasions in that period.
The father also deposes to the mother having multiple partners and to the children absorbing the “chaos and drama” of the mother’s life. The father deposes to Y having told him that Mr K smacks her on the leg and sends her to her room and to X having told him that Mr K tells him to hang up when X is trying to call him. He deposes to several mutual friends having informed him that Mr K yells at the mother, exhibits controlling behaviours and restricts the mother’s communications.
The father says that he is “extremely worried of the dangers with the children being taken along by [the mother] and seeing their mother’s explosive and irrational behaviour. The children are suffering stress trying to cope with transitioning between two very different higher environments and ‘rules’”.
The father says that equal shared time will provide more consistency and stability for the children.
DFFH Response
The Department of Families, Fairness and Housing provided a response dated 26 September 2023 (DFFH Response) to the father’s Notice of Child Abuse, Family Violence or Risk (NoCA) filed on 24 August 2023.
The DFFH Response indicates three previous reports have been made to Child Protection, all within the past year. The reports raised the following concerns:
·concerns regarding the mother’s drug use and delivering of illicit drugs while the children are in her care;
·concerns that X and Y were often late to school and day care when in the mother’s care; and
·concerns that the children had been left in a car while the mother was inside the house with a man.
Each of these reports appear to have been closed at intake with no further action taken.
The DFFH Response also outlined the current concerns raised by the father in his NoCA:
·concerns regarding the mother’s drug use and drug dealing;
·concerns regarding the mother’s mental health and its impact on her parenting and the children’s routine; and
·concerns regarding the mother threatening to smack the children when they sought contact father.
The DFFH Response provides that no further action is required and there was no role for Child Protection at this time. It further provides that follow up with the police did not identify any recent involvement by the mother in relation to drugs or criminal activity and follow up with the school and childcare had not corroborated any of the father’s concerns.
CONSIDERATION
This is an interim hearing, and accordingly, shorter reasons are permitted pursuant to s 69ZL of the Family Law Act 1975 (Cth) (Act).
It is well settled that matters concerning relocation are not in a separate category of cases, and they are to be determined by reference to Part VII of the Act as in any other parenting matter, see: Morgan & Miles [2007] FamCA 1230, (2007) FLC 93-343, (2007) 38 Fam LR 275. I am guided by the objects of Part VII and the principles underlying those objects: s 60B.
The Full Court in Goode & Goode [2006] FamCA 134 set out, at [81-82], the approach to be adopted in interim parenting matters. Their Honours recognised that there are often “conflicting facts, little helpful evidence and disputes between the parties in relation to what constitutes the best interests” of the children in interim cases.
Further the Full Court in Franklyn & Franklyn [2019] FamCAFC 256 (Franklyn) at [73], said that in interlocutory hearings, to the extent possible, judges are enjoined to make decisions about interim orders based on agreed facts, less contentious evidence and inferences which may arise and are obliged to act on the strength of the evidence presented. In the present case, I consider the less contentious evidence to comprise the parenting plan, the school history report, the drug test results and the DFFH Response and give that evidence weight.
The Court needs to take a conservative approach at an interim hearing: Marvel & Marvel [2010] FamCAFC 101 at [120].
In determining interim parenting orders, s 60CA of the Act provides that I must regard the best interests of the children as being the paramount consideration. For the reasons that follow, I have determined that the orders sought by the mother are in the best interests of the children.
In determining the best interests of the children there are two primary considerations and several additional considerations to take into account. I have taken account of all of those matters as they are presently relevant, even though I will not identify each of the subsections.
The two primary considerations set out in s 60CC(2) of the Act are:
(a)the benefit of the children of having a meaningful relationship with both parents; and
(b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence.
I am satisfied that the orders I will make at this interim stage will allow for a meaningful relationship between the children and both parents.
Whether the orders sought by the parties allow for a meaningful relationship
In this matter, there is no evidence before the Court as to the children’s primary attachment. However, it is uncontested that the mother has been the children’s primary carer since birth and the children have primarily resided with her post-separation. In that context, the father’s proposal for equal shared time represents a significant change to the care arrangements for the children, who are still young. There is no evidence before the Court as to the consequences or potential consequences of such a change. It is also uncontested that the relationship between the parties is one of high conflict and the parties are unable to communicate or co-parent effectively. I note that the parties are directed to attend a Court Child Expert in early January 2024 for the purposes of preparing a Child Impact Report and, in all the circumstances, consider that making the orders sought by the father ahead of that report being prepared is premature.
I accept that the orders sought by the mother will result in a reduction of time that the children spend with the father. I also accept that the parenting plan was entered into only 14 months ago and that provided for the children to spend mid-week time with the father each alternate week. However, I consider that the mother’s proposal still supports a meaningful relationship between the father and the children. The mother’s proposal provides for additional overnight time in the weekend. Although it does not include mid-week time in each alternate week, it still allows the father to be involved in the children’s school life and to attend events at school and day care and spend time on special days and occasions. I therefore reject the father’s submission that the absence of mid-week time results in a change to not only the quantity but also the quality of the time spent with the children.
As noted above, the father seeks orders for the parent not spending time with the children to be permitted to call the children each day between 6pm and 6.30pm. The mother’s orders propose the children communicate with the father via FaceTime each Tuesday and Thursday at 5.30pm, for not more than half an hour. Given the young age of the children, I consider the father’s proposed orders to be overly onerous. The mother’s orders will allow the children to communicate with the father on a routine and regular basis during the mid-week.
Whether there is a need to protect the children from harm
As to the need to protect the children from harm, it is also well settled that at an interim stage the Court cannot make factual findings on issues in dispute. However, where risk issues are raised, the Court cannot disregard those matters simply because it is not in a position to make such findings. In this case, there are a number of risk issues raised by both parties. However, I consider it is of note that notwithstanding that both parties assert the other parent poses a risk of harm to the children, both parties seek orders where the other parent continues to spend significant time with the children. In particular, notwithstanding the father’s allegations against the mother, he is content for the mother to have equal time with the children.
The mother’s primary allegations of risk posed by the father are set out and considered above. As set out above, those allegations, other than the Kicking Incident which occurred some years ago, are largely unparticularised and vague. Indeed, the mother’s material is, generally, vague, unparticularised and lacking in detail. I accept that there is an interim IVO in place against the father listing the mother and children as protected persons but note that it was made in the father’s absence and the allegations contained in it are vague and unparticularised. That matter is due to return to court in February 2024. In my view, on the material before the Court, the mother’s allegations of risk against the father fall very much short of establishing that the father poses a risk of physical or psychological harm to the children. Indeed, the mother conceded that the father does not pose an unacceptable risk to the children; rather the father’s conduct raised “some concerns”.
As to the father’s allegations of risk of harm to the children posed by the mother:
·the allegations of drug use by the mother are not supported by the drug test results. Those results indicate that drug use by the mother is not currently a risk factor;
·the allegations of involvement by the mother in delivery of illicit drugs are not supported by the DFFH Response and, further, are said to based on information provided to the father by an unidentified third party;
·the father’s allegations of excessive alcohol consumption by the mother are based on evidence which includes a photograph that is undated and not time stamped and is said to have been supplied by an unidentified third party and information said to be provided to the father by further unidentified third parties. In any event, both parties have agreed to further hair follicle testing for alcohol and the mother has agreed to testing for illicit drugs;
·the evidence before the Court in the form of the student history report shows that X has been late for school on 29 occasions in the period from early 2023 to late 2023. I consider this to be of concern. However, it is noted a number of these late attendances occurred on either a Thursday or Friday, and it is unclear as to whether these have occurred in the week the children are with the father or the mother. Further, the DFFH Response provides that follow up with the school has not corroborated the father’s concerns regarding X’s late attendance for school;
·the DFFH Response did not consider that the allegations of the mother threatening to smack the children required any further action; and
·the allegations regarding Mr K’s behaviour towards the mother and the children are said to be based on information provided by an unidentified third party and the children.
Accordingly, on the evidence before the Court, I am not satisfied that the mother poses an unacceptable risk to the children. It follows that I do not consider that the orders sought by the father are necessary to protect the children from risk of physical or psychological harm by the mother.
Whether the mother should relocate with the children to the F School area
As to relocation, I accept the father’s submission that in unilaterally relocating the children and enrolling them in a new school and day care the mother has failed to comply with the parenting plan, in so far as it provides for equal shared parental responsibility. I also accept that the mother’s conduct displays a degree of contempt for the court process, as does her repeated failure to comply with Court orders for the filing of material. Whilst the Court does not condone unilateral relocations, it is but one of the factors to be considered when determining interim parenting arrangements: Parks & Farmer [2012] FamCAFC 12 at [87].
In Franklyn the Court said at [26] - [28]:
[26]…it is worthwhile recalling the statements of principle proscribing the power to make orders which are, in effect, mandatory injunctions, forcing parents to live in places against their will so as to fulfil the statutory mandate to accord paramount importance to the children’s best interests.
[27]There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
[28]While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) (2007) FLC 93-350; Zanda & Zanda (2014) FLC 93-607 at [132]-[136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
In Oswald & Karrington [2016] FamCAFC 152 the Court said at [16]:
[16]It may be accepted, as it was in this case, that the Court has power to make a coercive order. Importantly though, it is well established that the proper exercise of that power is “at the extreme end of the discretionary range” and there should exist “rare” or “extreme” factors that warrant the Court exercising its discretion to make a coercive order requiring a parent to relocate so as to continue to perform the role of primary caregiver of children.
citations omitted.
The mother has been the children’s unchallenged primary care giver. I have addressed the father’s allegations of risk by the mother earlier in these reasons. I refer to and repeat those matters. It was submitted by the mother that requiring her to relocate with the children would have a negative financial impact on her. Whilst there is no evidence of this before the Court, I consider it self-evident that relocating back to the Suburb B area would involve expense for the mother and note that the mother is not in paid employment. It was also submitted that the mother had no readily available accommodation in the Suburb B area for her and the children and that whilst her mother lived in that area, she and the children could only reside with the grandmother for a short period of time. There is also no evidence of these matters before the Court, however, those submissions were not challenged by Counsel for the father and I accept them.
The reasons advanced by the mother for the relocation are set out at paragraph [38]-[42] above. For the reasons also set out in paragraphs [39]-[41], I consider the mother’s asserted reasons for relocation to lack cogency. Further, as also set out in that paragraph, the mother omitted from her affidavit that she and the children were residing with Mr K in Suburb E and also omitted detail regarding the enrolment of X in Suburb E School and Y in local child care. These are clearly relevant matters. Accordingly, I consider the mother’s evidence as to the reasons for her relocation, and the benefits which will flow to her and the children as a consequence of it, ought be approached with caution. Notwithstanding that, it is well established that compelling reasons are not required to be demonstrated for relocation: U v U (2002) 21 CLR 238.
The mother’s relocation of the children will have the result that the children will not spend mid-week time with the father, as agreed in the parenting plan, due to increased travel time. It will also increase the travel time for the children at the beginning and conclusion of each alternate weekend spent with the father (noting though that overnight time with the father on the weekend will increase). There is no evidence that the children’s relocation will limit the father’s ability to be involved in and attend events at school or day care, or participate in special occasions with children. Further, material before the Court indicates that Ms G and the father’s grandmother assist with school and day care pick-ups due to the father’s work commitments. I consider that the children will still spend meaningful time with the father in absence of an order as sought by the father that the mother relocate with the children back to the Suburb B area. On the evidence before the Court, at this interim stage, there are no extreme or rare factors which warrant the Court exercising its discretion to make a coercive order requiring the mother to relocate.
CONCLUSION
For all of the reason set out above, I consider the orders sought by the mother to be in the children’s best interests. No orders are made as to parental responsibility, noting that at an interim stage the Court is not obliged to make such orders, and in the present case, no such orders have been sought.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 2 November 2023
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