Gowing and Holborn
[2018] FCCA 1304
•2 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOWING & HOLBORN | [2018] FCCA 1304 |
| Catchwords: FAMILY LAW – Parenting – unilateral, unauthorised relocation by the Mother with young child – Mother confirmed that she was hurt and betrayed by what she said was the Father cheating on her with a young friend of the Mother – the Mother also confirmed that the Father did not “consent” to her removing the child interstate – in proceedings in the Magistrates Court in Melbourne the Mother asserted that the Father had kicked her out of the former marital residence, that the Father would not allow her to take the child, and that she was seeking an interim intervention Order because, among other things, the Father had been cheating on her – this account by the Mother is somewhat different from what was asserted in this Court – the Mother’s solicitor relied upon a first instance of the Family Court while none of the legal representatives referred to the Full Court decision in Morgan v Miles – child and Mother ordered to return to the area they fled – Father has offered to assist the Mother with accommodation. |
| Legislation: Family Law Act1975 (Cth), pt.VII, s.60CA |
| Cases cited: Bondelmonte v Bondelmonte (2017) 55 Fam LR 65 Cales v Cales (2010) 251 FLR 454; (2011) 44 Fam LR 376 Cowley v Mendoza (2010) 43 Fam LR 436 Morgan v Miles (2007) 312 FLR 114; (2008) 38 Fam LR 275; (2007) FLC ¶93-343 |
| Applicant: | MR GOWING |
| Respondent: | MS HOLBORN |
| File Number: | CAC 601 of 2018 |
| Judgment of: | Judge Neville |
| Hearing date: | 16 April 2018 |
| Date of Last Submission: | 20 April 2018 |
| Delivered at: | Canberra |
| Delivered on: | 2 May 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Kennedy & Cooke Lawyers |
| Solicitors for the Respondent: | Your Law Firm |
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
The child be returned to the Father at his home address by 12:00pm on 5 May 2018.
Upon the child being returned as per Order 1, the child shall recommence school at School at the beginning of the next school week or as soon as possible after that subject to the requirements of School.
Upon the Mother returning to live in the Region A area the child lives with the Father and the Mother on a week about basis after school each Friday.
Pending the Mother’s return to the Region A area and her securing appropriate accommodation, the child live with the Father and spend time with the Mother as agreed and if no agreement, from after school until 6pm Monday, Wednesday and Friday in each week.
In addition to the time the child spends with the parties set out in Orders 3 and 4, on the following occasions of special significance, the child shall spend time with the parties as follows:
(a)Each party will be entitled to spend three hours with the child on his birthday at times agreed between the parties;
(b)The Father shall not have the child on the weekend which includes Mother’s Day;
(c)The Mother shall not have the child on the weekend which includes Father’s Day;
(d)Each party will be entitled to attend all events involving the child, including:
(i)Sporting fixtures;
(ii)Extracurricular activities;
(iii)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
The child will have the following parental communication:
(a)Telephone conversations with either party as the child may request and each party will facilitate the making of such telephone calls;
(b)Each party shall ensure that when the child is spending time with them that their mobile telephones shall be charged and in working order so that the other party are able to communicate with the child.
Each party will ensure that when the child is in their care they will keep the other party informed of:
(a)Any medical problems or illnesses suffered by the child in their care;
(b)Any medication that has been prescribed for the child;
(c)Any social, school or religious functions which the child is to attend;
(d)Their residential address and particulars of the others whom may reside with the child;
(e)Any other matter relevant to the child’s welfare.
For the purposes of communicating information between the parties, the parties shall:
(a)Communicate by telephone matters of an urgent nature and otherwise; and
(b)Communicate by email or text about day to day matters including arrangements for each party to spend time with the child.
Each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
Each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within seven days of such change occurring.
Neither party shall consume alcohol to excess or consume illicit drugs whilst they have care of the child.
Within 14 days of the date of these Orders, being by close of business on 16 May 2018, the parties are to notify the Court what procedural course should take place upon the Mother and child returning to the Region A area.
The matter be adjourned for further directions on 21 June 2018 at 9:15am in CANBERRA.
IT IS NOTED that publication of this judgment under the pseudonym Gowing & Holborn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 601 of 2018
| MR GOWING |
Applicant
And
| MS HOLBORN |
Respondent
REASONS FOR JUDGMENT
Introduction
On 2nd May 2018, the Court delivered oral reasons in relation to interim parenting Orders regarding 6½ year old [X]. What follows are those reasons as revised from the transcript.
The matter first came before the Court on 16th April, at which time the Mother’s solicitor appeared by telephone from Victoria, and the Father’s solicitor briefed experienced Counsel in Canberra. In the Orders made on that occasion there is a notation that the Mother “has unilaterally relocated with the child to Melbourne.” This had been confirmed in the discussion with the Mother’s lawyer, Ms Lindsay, in the course of a brief, recent hearing. It was also confirmed by the Father’s counsel, Ms Curran.
The Orders of 16th April set out a procedure and timetable for the filing of written submissions by the parties.
The issue then as now before the Court regarding this interim discretionary judgment, relates to the application of principles set out by Boland J in Morgan v Miles regarding unauthorised, unilateral, interim relocation, in the light of the contested facts that were put before the Court by both parties.[1]
[1] Morgan v Miles (2007) 312 FLR 114; (2008) 38 Fam LR 275; (2007) FLC ¶93-343. This signal case has been consistently recognised as articulating relevant principle in parenting matters that involve relocation notably on an interim basis, and even more so where the relocation has been unilateral and unauthorised. See, among other places, Cales v Cales (2010) 251 FLR 454; (2011) 44 Fam LR 376; Sayer v Radcliffe (2013) 48 Fam LR 298 and Bondelmonte v Bondelmonte (2017) 55 Fam LR 65.
Since delivery of the oral reasons and pronouncement of Orders on 2nd May, the Mother has sought to provide the Court with further material but without seeking leave of the Court, to adduce and to rely upon further evidence. It has not been explained satisfactorily why this material was not before the Court earlier in time. Indeed, in the Mother’s further affidavit, filed 11th May 2018, she said (at par.3):
This affidavit should be read in conjunction with my affidavit of 15 April 2018. That affidavit was quite long because I wanted to respond to each incorrect statement in Mr Gowing’s [the Father’s] material. When I thought back, it hurt me that I had let things get this bad.
In the reasons that follow (and what has just been detailed from the Mother’s later-filed material), subject to any other comment set out later, I have had no [further] regard to this additional, unsolicited material in the absence of an appropriate Application by the Mother. I should also note in this regard the comments and rulings by Boland J in Morgan v Miles, at [48] and [49], regarding the Applications made in that case to adduce further evidence of matters that had already been the subject of determination at first instance. At those paragraphs, her Honour said:
48. In summary, I am satisfied that the evidence (or significant parts of it) sought to be adduced:
• Could have been adduced at the interim hearing
• Raises matters of controversy
• May be relevant to be adduced at the final hearing or on a variation application
• Did not demonstrate, if it had been available to the Federal Magistrate, that it would have resulted in different orders being made
49. Thus I am satisfied that the mother’s application to adduce further evidence (and the father’s similar application) should be rejected.
I do not say that the same ruling or findings made in that case would apply to the current matter. However, given the recent filing of material by the Mother, albeit with no Application before this Court regarding its use, the caution expressed by her Honour, I suggest, is salutary.
For the reasons that follow, on the limited but still substantial amount of material put before the Court by both parties, noting here (as I do in more detail later in these reasons) that (a) neither party had regard or referred to Boland J’s detailed exposition of principle in Morgan v Miles, (b) both parties, in different ways, refer to certain kinds of “risks” in relation to the parenting of [X], (c) the Mother’s own material makes plain that the issues between the parties are long-standing, albeit brought to a head by the Father beginning an intimate relationship with one of the Mother’s [much younger] friends, and (d) the Mother’s material confirming that she does not want to keep the child from the Father because, the Mother affirmed, [X] “needs his Dad”, in my view it is in the child’s best interests that he return to the area from which his Mother, without authorisation, unilaterally took him. It is also in his best interests that he spend regular time with both parents (ensuring that all parties and the child are relevantly protected) and for him to resume his normal school routine and be with his friends until a more orderly and methodical consideration of the evidence is possible, including a family report.
On an interim basis, in my view, the Orders as sought by the Father should be made. In all of the circumstances, however difficult and discretionary the facts and determination might be, and until there is the proper opportunity for facts and issues to be addressed in a proper and orderly manner, and that (a) the independent children’s lawyer has had a chance to consider material and meet with the child, and (b) there is a family report, I consider that the Orders are in [X]’s best interests.
Interim Orders Sought by the Father
The Father sought the following Interim Orders, which were outlined in his Initiating Application, filed urgently on 4th April 2018:
1) That until further Order of the Court or until a date not sooner than the making of Final Orders the Mother will return to and live at such an address in or around the Region A as shall be convenient for the Mother.
2) That the child live with the Father.
3) The child shall spend time and communicate with the Mother as follows:
a) Every second weekend from after school Friday to before school the following Monday; and
b) Such other contact as is agreed between the parties.
4) That immediately upon the Mother and the child relocating, the Mother shall notify the Father both verbally and in writing of the of the new address of the residence of the Mother, together with all other relevant contact details including telephone, e-mail and mobile phone, and the Mother agrees that she will notify the Father within 24 hours of any changes to those details.
5) That immediately upon the Mother and child relocating, the child shall recommence school at Primary School.
The Father filed an Amended Initiating Application on 23rd April 2018. Those more expansive Orders sought were as follows:
1) That the Mother cause the child to be delivered to the Father by 4pm Saturday 21 April 2018 at his home address.
2) That upon the child being returned as per Order 1, the child shall recommence school at Primary School from the beginning of Term 2.
3) That upon the Mother returning to live in the Region A area the child lives with the Father and the Mother on a week about basis from after school each second Friday.
4) That pending the Mother’s return to the Region A area and her securing appropriate accommodation that the chid live with the Father and spend time with Mother as agreed and if no agreement, from after school until 6pm Monday, Wednesday and Friday in each week.
5) In addition to the time the child spends with the parties set out in Order 3 and 4, on the following occasions of special significance, the child shall spend time with the parties as follows:
a) Each party will be entitled to spend three hours with the child on his birthday at times agreed between the parties;
b) The Father shall not have the child on the weekend which includes Mother’s Day;
c) The Mother shall not have the child on the weekend which includes Father’s Day;
d) Each party will be entitled to attend all events involving the child including:
i) Sporting fixtures;
ii) Extracurricular activities;
iii) School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
6) That the child will have the following parental communication:
a) Telephone conversations with either party as the child may request and each party will facilitate the making of such telephone calls;
b) Each party shall ensure that when the child is spending time with them that their mobile telephones shall be charged and in working order so that the other party are able to communicate with the child.
7) Each party will ensure that when the child is in their care they will keep the other party informed of:
a) any medical problems or illnesses suffered by the child in their care;
b) any medication that has been prescribed for the child;
c) any social, school or religious functions which the child is to attend;
d) their residential address and particulars of the others who may reside with the child; and
e) any other matter relevant to the child’s welfare.
8) That for the purposes of communicating information between the parties, the parties shall:
a) communicate by telephone matters of an urgent nature and otherwise; and
b) communicate by email or text about day to day matters including arrangements for each party to spend time with the child.
9) That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
10) That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within seven days of such change occurring.
11) Neither party shall consume alcohol to excess or consume illicit drugs whilst they have the care of any child.
The Mother’s Interim Orders Sought
The Mother’s Orders sought, set out in her Response filed 16th March 2018, were as follows:
1) The Mother have sole parental responsibility for the care, welfare and development of the relationship namely (the child), born 2011.
2) The child live with the Mother.
3) That the child communicate with the Father as follows:
a) That the child speak on the phone with the Father as the parties agree from time to time is suitable and in the best interests of all of them;
4) That the Mother and the (sic) may permanently relocate and change residence from Region B, New South Wales to the geographical area of Melbourne, Victoria.
5) That the Court transfers these proceedings to the Melbourne Registry of the Federal Circuit Court of Australia for further determination.
6) That the Mother be excused from further particularising the Orders she seeks at this time.
The Mother did not file, and has not filed, an Amended Response.
Submissions on behalf of the Father
In addition to the matters very briefly canvassed at the hearing on 16th April (which included the Father tendering a “batch” of SMS messages between the parties, which became Exhibit A), the Father’s written submissions, filed 20th April 2018, were as follows:[2]
[2] It is unclear why, in the Father’s submissions, reference is almost always to “the Wife” rather than “Mother” especially in circumstances where, thus far, there is no property aspect of the matter.
BACKGROUND
1) These are interim parenting proceedings in relation to the child [X] born 2011. The husband seeks that the child be returned before 21 April 2018. He has offered to provide a modern comfortable caravan as a short-term accommodation measure for the wife. He works from home. He notes the wife has many friends in the area. The parties separated on 19 February 2018 after a 15-year relationship. There is only one child, [X]. He is 6 years and 9 months.
ALLEGATIONS OF FAMILY VIOLENCE AND NEGLECT AND ABUSE
2) There was an incident of family violence when the wife returned to the family home with [X] in her car. The wife admits “I got angry and I pulled her out of the car…[X] was there … watching everything” (W para 35, H para 26-36). The wife admits she “saw red” (W para 35). The NSW police were called. The wife sent a text advising the husband that she had taken advice about the incident (21/02/18 at 4:42 pm): “I've already spoken to a solicitor about everything …and it's not domestic violence I know my rights for the situation you and Ms J have made”. The wife had sent threatening text messages. The messages included comments such as (20/02/18 at 9.20pm) “Your such a cunt the one thing u swore u wouldn’t do you just did, wow ur a lying cunt hope she was worth me and [X] have a good life alone” and 21/02/18 9.27am “as for her, her day will come”.
3) The family violence the child was exposed to arose in the circumstances where the wife had [X] in her care and sought out the conflict without any regard to the trauma this would and did expose [X] to.
4) Further, the wife discussed the relationship issues with the child, as is apparent from the text message she sent on 21/02/18 at 9.27am: “Morning lovers just wanted to let you know [X] said he wants to punch you in the doodle for having sex with Ms J… I have all the evidence I need now you sad sad sick cunt”. This shows no insight into the emotional and psychological impact on the child.”
5) Psychological damage to [X] is likely by the wife’s actions of refusing any contact between [X] and his Father and by removing [X] from his Father, his school, his home, his routine, his cousins, his animals and then him moving to Melbourne. The wife has no insight of the impact on [X] of missing his Father, with whom [X] spent the majority of his time (on the wife’s own evidence). The wife’ own text messages acknowledge [X] needs his Father, yet her focus is on punishment of the husband for the perceived way in which he has wronged the wife.
6) The assertions made by the wife of family violence by the husband are denied. There is little evidence and much assertion in the affidavit in support. The wife describes in her (7 page) case outline a relationship that was “characterized by family violence… which was entrenched and pervasive…” (at para 6).
7) The extent of the evidence from the wife in her (24 page) interim affidavit include:
a) allegations of sexualized behaviours (W para 25) which are denied. The husband’s responding material for final hearing will describe questions from [X] following NSW curriculum education given in class about the difference between males and females;
b) allegations of neglect that are denied including that [X] was left on his own when the wife was at work, not fed, not assisted with homework, not bathed or even put to bed (W case outline para 8). This is extraordinarily difficult to reconcile with the facts that the wife’s own evidence is she worked very long hours and returned to work when [X] was only 4 months of age leaving the child in the care of a now alleged “chronic alcohol and marijuana…poly-drug user” for the last 6 years;
c) allegations of family violence by controlling behaviours including “encouraging the child to engage in mock killing of the wife”. The context and implication are denied, however on Christmas Day a game occurred involving a toy gun [X] had received on Christmas Day.
d) allegations of a serious criminal history. The presentation of this evidence is designed to mislead the court. The Husband’s criminal history will be provided. The ban on his firearms license arose when on a hunting trip with his brother he was found not to have secured the bolt from the rifle in an appropriate manner, despite the ammunition being stored separately. He was fined $300 with a mandatory ban applying by reason of the offence. The alleged “drug and violence” matters arose over 16 years ago when he was 17 and 19 years of age. The husband had a personal use amount of cannabis and a charge of assault. He was a very young man and this was a decade before his son was born.
THE REMOVAL OF THE CHILD BY THE WIFE
8) After the 19 February “saw red” incident the child was cared for by a mutual friend (Ms B) who returned him to the husband several hours later.
9) The wife arranged for that friend to contact the husband to request for the child to spend time with her the following day on 20 February. The husband agreed to such time and in fact contacted the school to make arrangements for the collection of the child to facilitate the time. The husband was advised that the wife’s family was in town the next day and so time with the wife continued. The husband will file evidence about the conversation he had with the wife’s Father about sorting the arrangements out by agreement.
10) This history is inconsistent with the wife’s material filed in support of her Application for an Intervention Order granted on 9 March 2018 in Victoria post her unilateral relocation. This application states “he ordered me out of the house and refused to allow our son to come with me….it was not until 20/2/18 that I was reunited, after my friends went to get him.” (Intervention Order point 3.) Whilst it is correct that the husband refused to agree to the wife taking the child in the state she was in following the home incident (in the wife’s own evidence where she “saw red”) there was agreement between the parties for the friends to take [X], return him home, then the following day for the friends to collect him from school to spend time with the wife and afterwards the maternal family visiting from interstate.
11) The wife did not return [X] home and the husband has not seen the child since, has not been advised of his location and was not permitted to speak with him at all (W para 30, H para 6 & 41). The wife seeks only telephone contact and asserts the child has not asked about the husband.
12) The timing of the decision to relocate is significant. The wife advises the husband by text that if “she” is there she won’t be asking [X] to talk to the husband. This is revenge and retribution for the “wrong” the wife perceives and is to punish the husband:
13) 25 February 2018 11.52am…(FROM WIFE)“If she's with you I won't be asking [X] if he wants to talk to you… by the way I know you're having the time of your life staying on the boat with her” and later that day - 25 February 2018 3:44pm (FROM WIFE) “I know you haven't been working and spent the night with her on the boat last night I'm not stupid she's been with you..” This same day the husband advises he will be seeking orders from the court. Only then does the wife relocate to Melbourne.
REQUESTS FROM THE HUSBAND FOR CONTACT INFORMATION AND TIME
14) The wife’s case outline asserts “the husband has only attempted to contact the wife twice and has not even asked to speak with the child or send a message of love.” (W case outline para 9). This is untrue. The text messages between the parties alone set out the numbers of requests. Additionally, there has been involvement of family and friends.
15) The wife refused to allow the husband to speak with the child. He made many requests directly by telephone and by text. Until his telephone was disconnected by the wife, he made numerous requests to speak to his son and asked for information about his whereabouts on numerous occasions. He specifically said he did not agree to the child being taken to Melbourne and specifically noted his concern about him being kept out of school, his routine and away from his friends. He was prevented from making further requests first by the disconnection of his phone and secondly by the wife obtaining an interim intervention order.
16) The requests from the husband were focused on [X], seeing him, talking to him and resolving the arrangements. It is now 6 weeks since this occurred and the wife still has refused to allow any contact at all between the husband and child, including telephone contact. She has not notified the husband of where [X] is or where he is at school.
17) The husband attempted contact via telephone and text over the next weeks and was not permitted to speak to [X], nor were any details of [X]’s whereabouts provided. The wife has remained steadfast in her refusal and now seeks telephone contact only (page 2 case outline). The wife admits she disconnected the husband’s telephone “since 4 March 2018 I had Mr Gowing’s number disconnected” (W para 60).
18) The wife criticizes the husband’s parents for seeking to make contact to determine [X]’s location and to make arrangements for time by text on 4 and 6 March 2018, after she had disconnected the husband’s phone (intervention order point 5).
19) The wife refused to disclose [X]’s whereabouts since 20 February (W para 63). The husband advised the wife he did not consent to her moving to Melbourne with the child (Text of 23 February 10.39am). The wife unilaterally relocated to Melbourne on 26 February 2018 (W para 59) with the child removing him from his primary school and enrolling him in another undisclosed school on 7 March (W para 61). Until the mobile telephone of the husband was disconnected by the wife she had continually refused and failed to advise where the child was or allow any communication at all between the child and his husband.
20) The husband was contacted by telephone by the Victorian police and advised an interim protection order was made on 9 March 2018 and he was not permitted to contact the wife or child. (The wife’s affidavit makes no mention of the intervention order application, the orders made on an interim basis, the husbands attendance at Sunshine Magistrate Court to defend the application or the detail of the history which is inconsistent with the application.) The purported grounds for the order are significant in light of the history.
21) The wife obtained an interim intervention order in Sunshine Magistrates Court. It is opposed and is now listed for further mention on 8 May 2018.
22) The husband disputes the allegations made by the wife of risk.
23) The husband was [X]’s primary carer. The wife gives evidence that “The only reason Mr Gowing thinks he’s the primary carer for [X], is because I had to work a lot…I also worked changeable nights and days on a roster...and my shifts changed constantly…he was forced to take responsibility for [X]” (W para 37) and “Mr Gowing hated the fact that I was always at work…he complained that he had to look after [X]..:” (W 41).
24) [X] was happy at his school in Primary School (H para 11), loves his cousins [A] and [B] (W para 67), is involved with his paternal grandparents who visited 6 times in the last two years for 3 weeks each visit. The wife has friends in the Region B area (W para 71).
25) The husband’s employer has a caravan and has confirmed in writing to Mr Gowing that it can be made available for the wife to reside in pending her obtaining more permanent accommodation for a period of up to three months.
26) The husband attended and completed a post separation cooperative parenting course at Region A on 18 April 2018.
OUTLINE OF SUBMISSIONS
The “legislative pathway” as outlined in Goode must be followed
Identifying the competing proposals of the parties:
The application and orders sought by the husband are in the amended application. The wife seeks sole parenting responsibility and telephone time only.
Identifying the issues in dispute in the interim hearing:
The return of the child to the husband’s care and the child’s home is the only way to ensure a meaningful relationship with both parents. The husband disputes the allegations of risk in his care. The husband maintains that he was the primary carer and worked from home whilst the wife was working long hours and split shifts. The husband will facilitate the relationship. The wife seeks only telephone contact and has steadfastly refused any form of contact, despite repeated requests.
Identifying any agreed or uncontested facts:
1. The husband works from home as a (occupation omitted). The wife worked long hours and split shifts.
2. The relationship broke down on 18 February 2018.
3. There was an incident of family violence when the wife came to the home and assaulted a third party (Ms J) who she believed was having an affair with the husband.
4. The wife brought the child to the home during that incident.
5. There were a number of text messages sent by both parties which included many requests by the husband for time with [X] which were refused or ignored.
6. The wife failed to make any effort for [X] to see or speak with the husband. This remains the case.
7. The wife relocated to Melbourne on 26 February without the husband’s knowledge or consent.
8. The wife obtained an interim intervention order on 9 March 2018 which is listed for directions hearing 8 May 2018.
Considering the matters in s.60CC (which may in interim proceedings be limited)
Primary considerations:
2(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and
Given the wife’s conduct the child will have no relationship with the husband if the child remains living with the wife.
2(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The husband’s case raises issues as to the need to protect the child from psychological harm, given the wife’s conduct in unilaterally changing the residence seemingly as punishment for the circumstances of the relationship breakdown. The text messages expose the dynamic. The concerns outlined by the wife via text relate to the nature of the relationship breakdown. The wife has withheld the child and discussed the alleged infidelity with the child.
The wife raises vague allegations of control and abuse, exposure of the child to sexualised behaviours, neglect and drug and alcohol use. These allegations are denied. They are non-specific and vague in nature. They should be determined at a final hearing. Safe guards such as injunctions on consumption of alcohol to excess and consumption of illicit non-prescription drugs will deal with the alleged risk. The parties are now separated. The volatility that existed at the time of separation should be resolved.
The other s60CC factors are addressed in the submissions above. Counsel is able to address any further aspect orally if required.
Submissions on behalf of the Mother
The Mother’s written submissions, filed 20th April 2018, were as follows:
1) The applicant husband/Father filed an application for interim and final orders on 4 April 2018.
2) The respondent wife/Mother was served with the relevant documents by email and instructed a lawyer immediately.
3) The respondent wife/Mother relies upon her [sic: “affidavit”] affirmed 15 April 2018.
Facts grounding the application in a case
4) The parties met in 2003 and married 2011.
5) There is one child of the marriage, [X], born 2011.
6) The relationship was characterised by family violence. The violence was mainly psychological but was entrenched and pervasive to the point the wife/Mother instructs she just “switched off”. The husband/Father was controlling of the wife/Mother and encouraged the child to engage in mock killing of the wife/Mother and to allocate all household tasks to the wife/Mother, where the child would also tell the wife/Mother that these tasks were her job because “Dad is the boss”
7) The husband/Father deposes that he was the main caregiver of the child. This is denied by the wife/Mother. She concedes she worked extraordinarily long hours at times but deposes in her material that this was essential as she was the main breadwinner. When the child was at home with the husband/Father, the wife/Mother deposes that the child was left to his own devices and the husband/Father spent his time in the shed that was built on the property for the husband/Father to build boats in. The husband/Father is a chronic alcohol and marijuana abuser and may be a poly-drug user, but this is uncertain.
8) The child has developed behaviours which are still evident as a result of this neglect by the husband/Father. For example, the child will raid cupboards and take items such as new packets of biscuits. He will then secrete them for later consumption. The wife/Mother has always provided the child with plenty of food, but the times when the husband/Father was “caring” for the child, he was not in attendance and did nothing to provide a proper meal, assist with homework, bathe and dress the child for bed, or even put him to bed. Many nights, the wife/Mother came home to find the husband/Father passed out on the couch and the child asleep, but not in his bed.
9) The wife/Mother finally left the matrimonial home when she realised the husband/Father was having sex with another quite young woman in the house. The husband/Father would tell the child that if “mummy doesn’t give daddy some loving, daddy will have to find a new mummy”. It appeared evident to the wife/Mother that this is what had occurred. The wife/Mother left initially without the child as the husband/Father had always claimed ownership of the child as though he were a chattel and had told the wife/Mother that he would prevent her taking the child if she left him. The wife/Mother sent friends to collect the child from school. The husband/Father was notified but did not intervene. Since then, the husband/Father has filed for Recovery of the child to himself but has only attempted to contact the wife/Mother twice and has not even asked to speak with the child or to send a message of love.
10) The child has been inappropriately sexualised by the husband/Father. The child has been encouraged to touch women’s breasts and vaginas without permission. The wife/Mother has film footage of the child engaging in these sexualised behaviours. The wife/Mother is working with a psychologist to work through this and help the child understand why this behaviour is unacceptable.
Orders sought
11) The interim application seeks orders that:
a) The Mother has sole parental responsibility for the child’s long term care, welfare and development;
b) The Father have telephone contact only at this time;
c) Other orders as the Court deems fit.
The applicant Father’s alternative proposal
a) That the child be returned to the Father’s care;
b) That the Father has sole parental responsibility for the child;
c) Other orders as stated.
Issues
12) The issues are:
a) The Father was not actually the child’s main caregiver as claimed.
b) The Mother worked long hours as the main breadwinner and she also filled the role of primary caregiver to the child.
c) The Father abuses marijuana and alcohol and is involved with persons who also use. The Father sees nothing wrong with this and exposes the child to his drug taking, including being party to passive consumption of exhaled smoke.
Procedure
13) In Goode v Goode FamCA 1346 the Full Court suggested in an interim application the court adopt the following framework:
a) Identifying the competing proposals of the parties;
b) Identifying the issues in dispute in the interim hearing;
c) Identifying any agreed or uncontested relevant facts;
d) Considering the matters in section 60CC that are relevant and, if possible, making findings about them, in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place;
e) Deciding whether the presumption in section 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;
f) If the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
g) If the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable;
h) If equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in section 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable;
i) If neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC;
j) If the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC; and
k) Even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Principles to be applied in relocation cases
14) The principles to be applied in relocation cases are set out in MMR v GR (2010) 240 CLR 461 [sic: “MRR v GR”]. Justice Murphy in Cowley v Mendoza (2010) 43 FamLR 436 set out at paragraph 44 a step by step approach which should be followed in relocation cases.
15) Apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility (ESPR) in respect of them.
16) To make findings as to whether any family violence or abuse, as each is defined, exists.
17) Further, or alternatively make findings by reference to section 60CC(3) about such matters pertaining to best interests relevant to the issue of whether parental responsibility should be shared equally.
18) Determine whether the presumption of equal shared parental responsibility is, as a result of the findings about each, or both, of the above matters respectively, inapplicable or rebutted, or presumption (of ESPR) or not, whether such an order should be made.
19) If the presumption of ESPR is inapplicable or rebutted and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate orders are in the best interests of the children in their particular circumstances, looking at sections 65D; 60CA; 65AA.
20) If the presumption of ESPR is not inapplicable or rebutted, or if the Court determines that an order for ESPR should in any event be made, the Court must then proceed to (section 65DAA):
a) Make findings as to whether the subject children’s best interests are best met by an order for equal time; and
b) Make findings as to the matters prescribed in section 65DAA(5) and as a result;
c) Make findings about whether an equal time order is reasonably practicable (make a practical assessment of whether equal time parenting is feasible); and
d) If it is not, conduct the same process (a – c) but this time with findings directed to a consideration of whether a substantial and significant time order (section 65AA(3)) should be made
21) If neither an equal time order nor a substantial and significant time order should be made, proceed to determine the orders which the earlier findings point to, being in the subject child’s best interests (sections 65D; s60CA; s65AA).
Section 61DA(3) – Equal shared parental responsibility
22) The presumption of equal shared parental responsibility does not apply.
23) The presumption is rebutted on the basis the child would be substantially neglected and would be exposed to drug use and inappropriate sexual behaviour if returned to live with the Father on a sole parental responsibility basis.
24) The respondent denies ESPR is in the best interests of the child.
Section 65DAA
25) It is not in the child’s best interests to spend substantial and significant time with the Father for the reasons as stated above.
26) The child requires time, counselling and exposure to a functional family situation in order to become a well-adjusted, sober adult.
Section 60CA
27) The best interests of the child are paramount. They would not be met if the child were to live with the Father.
Section 60CC(2)(a) – Benefit to the child of having a meaningful relationship with both of the child’s parents
28) The child should have a relationship with both parents, but at this time the Father is not suitable to be granted unsupervised time.
Section 60CC(2)(b) – Protecting the child from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence
29) It is respectfully submitted that the best way to protect the child from this harm is to leave him with his Mother and her extended family in Melbourne.
Section 60CC 3(a) – Views expressed by the child
30) The child has only asked about his Father twice since leaving Region B. He does not express a desire to return to his Father’s care. The Mother has not subjected him to questioning as he is only six (6) years of age.
Section 60CC 3(b) – The nature of the relationship of the children with each parent and other persons
31) The child has a close and loving relationship with the Mother. The child’s relationship with the Father is cordial. The child must be told to give the Father a cuddle and even then, states a desire to not do that, but he is willing to show affection to the Mother without being asked to do so.
Section 60CC(3)© – The willingness of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
32) The Father has told the Mother many times that if she left him, he would take the child from her and she would never see him again. The Mother is willing to facilitate a relationship with the Father but, at this time, seeks any time with the Father to be fully supervised.
Section 60CC(3)(d) – The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation from parents
33) The child has settled well in his new home. He attends school and is making friends and adjusting well. He has not expressed any distress at not seeing his Father.
Section 60CC(3)(e) – The practical difficulty and expense of child spending time with a parent
34) The parents now live quite a distance apart. In the future, it may be possible for the child to spend holiday time with the Father, but his barriers are substantial at this time and the Mother asks that a Contact Centre be used if the Father seeks time with the child. Such contact would be in Melbourne and the costs would need to be borne by the Father as the Mother is now dependant [sic] upon Centrelink for income.
Section 60CC(3)(f) – The capacity of each parent to provide for the needs of the child including emotional and intellectual needs
35) The Father neglected this aspect of child care along with many of the physical needs as well. The Mother and her family are well-equipped to fulfil all the child’s needs now and into the future.
Section 66CC(3)(g) – The maturity, sex, lifestyle and background of the child or either of the child’s parents
36) The child is six but has been sexualised by the Father. The parents are adults and otherwise mature and capable, however the Father is a drug and alcohol abuser and has no insight into the needs of a child.
Section 60CC(3)(i) – The attitude to the child and the responsibilities of parenthood, demonstrated by each of the child’s parents
37) The Mother wanted the child when she found she was pregnant. The Father sought an abortion, but the Mother would not entertain that. The Father has said the child ruined his life because he now had responsibilities he did not want. The Mother has been a responsible parent, attending to all the child’s needs despite working long hours to cover all the household bills.
Section 60CC(3)(j) – Any family violence involving a child or member of the child’s family
38) The marriage was one of psychological violence wherein the Father completely dominated and sought to control the Mother. The Father has also taught the child to behave towards the Mother in the same manner. The Mother is now working to undo that inappropriate training by the Father.
Section 60CC(3)(k) – Any family violence order that applies to the child or a member of the child’s family
39) There is an Interim Intervention Order granted in the Sunshine Magistrates Court. The matter is listed for hearing on 8 May 2018 as the Father is contesting the Mother’s application.
Section 60CC(3)(l) – Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
40) The Father may not easily accept an order where he perceives any loss of control. The Mother will fight for the child’s best interests, which in her mind mean the Father should have limited contact unless he can demonstrate significant change.
Section 60CC(3)(m) – Any other fact or circumstance that the court thinks is relevant
41) It is submitted that the Mother’s final and successful attempt to leave a controlling and misogynistic partner should be seen as the first step to a new life for the child, who has some very inappropriate behaviours and attitudes to undo.
Consideration and Disposition
By way of preliminary observation, I note firstly that in no documents filed has there been any suggestion that either the Father consented to the relocation or that the Mother had obtained a relevant Order of the Court. Indeed, in her latest material (Affidavit filed 11th May 2018, par.37), the Mother acknowledged that she took the child without the Father’s consent.
Secondly, as noted briefly earlier in these reasons, in the written submissions of both parties curiously, if not very surprisingly, especially in the light of Counsel’s earlier reference to it at the initial hearing on 16th April (and the Court’s acknowledgement of it), there is no reference at all to the fundamental case of Morgan v Miles (the submissions of the parties appear to have been prepared by the solicitors involved; likewise, it is evident that the original Counsel in the matter for the Father had no input to the submissions). This significant omission must be remedied by the Court by setting out at a little length the following extracts of principle enunciated by her Honour, Boland J, sitting as the Full Court. And as I note later in these reasons, her Honour was treating an interim, unauthorised unilateral relocation, which is the situation here. By way of curious contrast, the Mother’s submissions in the current matter proceed on the basis that the matter was being treated and determined as if on a final basis, which it was not.
At [55] and [73] – [81], her Honour said (emphasis added):
[55] … on one reading of the submission, it assumes a “right” to relocate. There is nothing in the legislation which provides that a parent who has existing order which provides that the child spends fifty per cent or more of his or her time with that parent has a unilateral right to move the child, (on the basis that this is in the child’s best interests). Whilst such a move may, after exploring all relevant factors, be found to be in the child’s best interests, those interests can only be determined by examination of the relevant factors in the structured exercise of discretion required by the legislation. It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court’s discretion in determining a child’s best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.
…
[73] It is also undisputed that in determining a parenting case where one party wishes to relocate the child’s best interests remain the paramount, but not sole, consideration.
[74] The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
[75] It is clear that if a parenting order for equal shared parental responsibility has been made prior to any parenting application involving a relocation, the parties have a primary duty under s 65DAC to determine jointly if proposed living arrangements for a child would make it significant more difficult for that child to spend time with the “left behind” parent.
[76] If no order for equal shared parent responsibility has been made and s 61C governs the situation, the parties can exercise parental responsibility either jointly or severally.
[77] The requirements of s 65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the “left behind” parent. The operation of s 65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.
[78] Section 60I requires parents, if no exclusionary factors such as abuse, family violence or urgency apply, whether there is an order under s 61C, or s 61B is operative, to make a genuine effort to resolve the dispute with a family dispute resolution practitioner.
[79] In considering whether the child should live with the parent who proposes to relocate a court:
• Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
• Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
• Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
• If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
• In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
• When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
• Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
• Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
81. What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
Then at [83] – [91], Boland J commented on the application of principle in relation to “interim Applications”, such as that which is presently before the Court. Her Honour relevantly said (emphasis added):
83. I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.
84. The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.
85. In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph. Whilst lengthy, it aids understanding to set out the relevant passages from Goode:
71. The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
73. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).
86. I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.
87. As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
88. It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.
Do different considerations apply if the proposed relocation is intrastate, interstate, or international or “local”?
89. This appeal does not raise issues relevant to an international or interstate move and I have not had the benefit of argument on those issues. It is not necessary or appropriate to consider the issues germane to such applications on this appeal against an interim parenting order. It would be a rare case that a parenting order providing for an international relocation would be made following an interim hearing.
90. The focus in this appeal has been on what may be described as a “local” move of approximately 144 km and whether this constitutes “a relocation”.
91. The artificiality of determining a parenting application involving relocation on the basis of distance is well demonstrated by the example given in the Family Law Council report (see paragraphs 2.28 to 2.32). This leads me to conclude that it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.
I should mention briefly one matter before dealing with the facts of the current matter.
In the Mother’s submissions, at par.14, her solicitor referred to the decision of Murphy J in Cowley v Mendoza.[3] With the greatest respect to his Honour and his typically robust and pellucid exposition in that case, Murphy J was sitting at first instance in that case and at a final hearing. The decision of Morgan v Miles is that of a Full Court, which is formally binding on this Court. It concerned very similar facts to what is before the Court in the current matter, namely an unauthorised, unilateral relocation by one parent with a child. I have noted earlier a number of more recent Full Court decisions that have relevantly cited or otherwise referred to Morgan v Miles. Respectfully, Cowley v Mendoza has no application in the current circumstances.
[3] Cowley v Mendoza (2010) 43 Fam LR 436.
Applying these principles to the facts of this case, such as they are presently known, or rather disputed, as is common-place in interim proceedings, I note the following.
In her most recent Affidavit (filed 11th May 2018) the Mother confirmed that: (a) she lost her temper with the Father for him allegedly having a relationship with one of the Mother’s (much younger) friends (pars.5 – 7) resulting (unsurprisingly) in the Mother feeling betrayed by her former friend, (b) her SMS communication with the Father initially contained “nasty” messages but it was now “more civil” (pars.34 – 36), (c) alleged firearm offences by the Father (which he acknowledged but confirmed that they related to events more than 10 years ago), (d) she worked long hours which left the child in the Father’s care but (she said) the child was not actually cared for by the Father, (e) the Father’s alleged use of marijuana, which the Mother said she never used but that the Father’s new girlfriend does, and (f) [X] was struggling at school and the Mother had intended to act on this aspect but had not done so. The Mother also says that [X] has settled well into his new school in Melbourne.
At par.37 of the Mother’s most recent affidavit, she deposed: “I concede I left home without Mr Gowing’s agreement. I needed my family, but, more importantly, [X] needed to get away from the toxic place my home had become. He also needed to get away from his school.” Then at par.39, the Mother said: “I don’t want to keep [X] from Mr Gowing completely, but [X] is not safe with Mr Gowing on his own…”
All the matters raised by the Mother (and the Father) are important. However, it is not at all clear to me what puts them into the “special category” of case to which Boland J referred in Morgan v Miles, at [88], as a case of “emergency”. Each (or at least most – excluding the recent intimate relationship between the Father and the Mother’s [former] friend) of the matters, on the Mother’s own evidence, are issues that have generally been present in the course of the substantial relationship of many years between the parties for some time (approximately from 2003 until this year; they married in 2011). Indeed, in a “txt” message attached to the Mother’s affidavit (unfortunately unpaginated but dated 21st February at 9:56am) there is the following exchange:
[Father]: You and I need to sort this out and at least make a plan for [X] you can’t just keep him away from me if I rung u answer your phone
[Mother] I will sort something at with you but not right now, I do not want to see you yet after what you done … I’m taking him away from u Mr Gowing he needs both of us but I physically can’t face u
In the same group of messages, the Mother goes on to lament how the Father “broke her heart” by having this new relationship (described in some graphic detail that need not be recorded here) and that as a consequence of her broken heart she “can’t deal with you.” Later still in the same “chat”, the Mother said to the Father (apparently on the same date noted earlier) “I’m not taking [X] away from you I know he needs his dad.”
For completeness, there is nothing of which I am aware to indicate that, for example, the child’s school in School had any concerns about the child in any of the ways suggested by the Mother. Nor is there any evidence that Care and Protection authorities have been involved with the family arising from, for example, claims of neglect of the child or otherwise.
In this latest Affidavit, the Mother makes no mention of the interim “intervention order” she obtained in the Sunshine Magistrates Court against the Father, and which was due to return to that Court on 8th May 2018. A copy of the Application for an Interim Intervention Order, dated 27th March 2018, is attached to the Father’s Amended Initiating Application. Among the grounds in that Application are, according to the Mother, that the Father had been cheating on her, and that the Father had “ordered her out of the house and refused to allow our son to come with me.” These grounds, on their face, seem to be somewhat different to the Mother’s account of events as set out in the material filed in this Court. Doubtless she will be able to explain the differences.
True it is that there are allegations of domestic violence (articulated by the Mother as the Father being “controlling” of her throughout the relationship), as well as allegations in relation to drug taking or drug involvement, as well as use of alcohol. The Mother also raises some issues of alleged neglect of the child by the Father, as well as allegations of some sexualised behaviour of the child, which the Mother attributes to the Father. The Father denies these allegations.
However, these allegations (or “issues”) need to be seen and considered in the light of the relatively extensive SMS messages between the parties, particularly around the time of the break-up of the relationship. A number of these messages were set out earlier in these reasons. I need not repeat them here, except to note that the issues between the parties seem to have been of long-standing, and that the Father’s new relationship with a young friend of the Mother’s seems to have been the last straw, so to speak.
Those messages make it clear that the parties were in regular contact before the Mother’s relocation with the child, that the Father did not agree with or consent to such a move, and that there was some volatility with the breakup of the relationship. Unsurprisingly, this seems to have coloured the views of the parties to subsequent events. The same messages also make it clear that the Mother does not (or at least did not at that time) intend to remove the child from his relationship with the Father. Quite the contrary, she stated that “[X] needed his Dad.” However, subsequent events, not least the interim intervention Order from the Magistrates Court in Melbourne, seem to have made any relevant communication between the Father and child exceedingly difficult if not almost impossible.
The Mother also claims that the Father has “indoctrinated” (my word) the child into disrespecting his Mother and women in general. She says that [X]’s behaviour was disturbing and disrespectful of her to a significant degree when living with the Father.
Whatever the characteristics of the relationship between the child and the Father, it seems uncontested that prior to the Mother unilaterally relocating, [X] spent very considerable time with the Father. The SMS messages between the Father and the Mother since the relocation, on their face, at least attest to the distress of the Father and his desire to speak with his son to assure him of his love.
The allegations/issues, as I have said, are serious and important: alcohol and marijuana use (by the Father), disrespect of the Mother, alleged neglect of the child in the care of the Father, alleged bullying of the child at school, volatility in the parental relationship (particularly at its end), sexualised behaviour by the child, and [old] firearm offences by the Father. All these matters, and whatever else may be dredged from the past, need to be and will be investigated.
Likewise, the Father’s contentions (which I have not canvassed at any length at all, except to record in full the Father’s position as outlined in his detailed submissions) regarding, for example, the Mother involving the child in the parenting dispute and various relationship contests between the parties, will need to be investigated.
But, as Boland J was at pains to point out in Morgan v Miles, proper and thorough inquiry is almost impossible where there has been an unauthorised unilateral relocation. The important matters raised by both parties, to which I have referred, must be examined. But this can only properly and reasonably occur when the child is returned to his school at Primary School and the Mother likewise has returned to the area from whence she fled.
I note that the Father has even offered some short- to medium-term accommodation for the Mother. I leave such matters to the parties and their legal advisors.
To the degree that the Court can make any relevant comment in relation to the facts as asserted by the warring parties in the light of the so-called “legislative scaffold or pathway” prescribed in Part VII of the Family Law Act 1975 (“the Act”), and without traversing everything that has already been canvassed in the course of these reasons thus far, I note summarily the following:
(a)There are few if any “views” expressed by the child. And even if there were more of them, his age militates against them being given much weight, especially in the current untested state of the evidence;
(b)The nature of the child’s relationship with the parties is highly contested, including the nature of the care provided by the Father during the long-periods of time the Mother was at work. In her submissions, even the Mother confirms that the child’s relationship with the Father is “cordial”;
(c)The evidence, such as it is, seems to cast little doubt on the child being embroiled in the parenting/relationship issues for perhaps the past 6 months or thereabouts;
(d)Regarding issues of violence, while notably levelled against the Father by the Mother by reference to his alleged “controlling behaviour” throughout the relationship, there is also an incident, which seems not too hotly contested, that involved the Mother and her former “friend” now apparently the Father’s new girlfriend;
(e)I can make little or no comment on the competing accusations of the parents regarding the willingness of each parent to facilitate a relationship between the child and the other parent. Thus far, given that the Mother has unilaterally removed the child from his school and his Father, without the Father’s consent, and her opposition even to very much telephone time between Father and son, I am not overly confident, at this stage, of there being much “facilitation” of “time with” arrangements. Further, the Mother now seeks that any time between Father and son be supervised. All of this is against the background of the Mother’s SMS messages to the Father that [X] “needs his Dad”;
(f)The current logistical issues, with the Mother in Melbourne and the Father on the Region B of New South Wales are immense;
(g)There are far too many contested facts regarding the claims by both parents about the parenting capacities of each parent for the Court, at this stage, to make any informed judgment.
On the basis of the principles set out in Morgan v Miles, and in the light of the highly contested circumstances outlined in these reasons, in my view the interim orders sought by the Father, on an interim basis, are in the best interests of [X] in accordance with s.60CA of the Act. They are to be adjusted, however, so that the Mother is to return the child to the Father by 12 noon on Saturday 5th May. Within 14 days after the return of the child, the parties are to advise the court by email regarding the future procedural course in this matter.
In making these Orders, obviously on an interim basis, I readily accept (because it is a fact) that the exercise of my discretion is precisely that – the exercise of a discretion. Other minds may differ, but that will almost inevitably be the case. I have sought to outline the very imprecise and volatile and still untested evidence of the parties. The proper testing and evaluation of all the evidence must necessarily await a final hearing and all of the usual investigations and assessments that precede the trial. Everyone I am sure will also be assisted by the independent children’s lawyer in due course. Only when such things occur can and will there be, as Boland J confirmed (at [74]), “the careful exercise of a structured discretion to determine the appropriate Order to be made.”
Only when there has been what might be described as a return to something of the status quo, accepting the serious allegations made, particularly by the Mother, can there be proper attention to the detail of those allegations. But as Boland J made plain in her reasons in Morgan v Miles, effectively, by making an unauthorised unilateral relocation, it entirely binds the hands of the Court and leaves the “left behind parent” in an almost untenable position. It may be the case that, ultimately, the Mother and child should relocate to Melbourne. However, in the current circumstances, to have made such a move without the consent of the Father and or an Order of the Court, the Mother’s precipitate action has placed everyone in an untenable position.
Protections can properly be put in place to the degree that this needs to occur. But at the moment, we need to have the child returned to his usual environment, his usual school. The principles enunciated by Boland J in Morgan v Miles must be adhered to by this Court as well as by the parties. Then, in an orderly and methodical way, in every appropriate way, the allegations raised by both parties can and will be examined. When that is done, everyone will be in a much better and more informed position to determine what Orders are ultimately, and on a final basis, in the best interests of [X].
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 12 June 2018
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Procedural Fairness
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