Haight and Haight and Taber and Oakley - [2009] FMCAfam 576

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAIGHT and HAIGHT & TABER and OAKLEY

[2009] FMCAfam 576

FAMILY LAW – Interim care arrangements for two children aged 22 months and 9 months respectively – children currently separated – older child with father in [H], Victoria – younger child in [M] in South Australia in care of maternal grandparents – separation of siblings – unilateral relocation of older child – presumption of equal shared parental responsibility – section 60CC factors – best interests.

Family Law Act 1975, ss.60A, 60B, 60CC, 61DA

Goode & Goode (2006) FLC 93-286
Campbell & Spalding 15 May 1998 NA4 of 1998
Morgan & Miles (2007) FamCA 1230
Re K (1994) FLC 92-461

Applicants:

MR HAIGHT & MS HAIGHT

Respondents:

MS TABER & MR OAKLEY

File number:

ADC 818 of 2009

Judgment of:

Brown FM

Hearing date:

22 April 2009

Date of last submission:

22 April 2009

Delivered at:

Adelaide

Delivered on:

23 April 2009

REPRESENTATION

Counsel for the Applicants

Mr JG McGinn

Counsel for the First Respondent:

Mr R Tinning

Counsel for the Second Respondent:

Ms V Lee

ORDERS

The father return the child [X] born in 2007 to the [M] area and deliver her to the maternal grandmother at a location in [M] to be agreed between the parties and failing agreement to be at the [M] Police Station at 4:00pm on 26 April 2009 or at some other time as the parties agree subject to their convenience.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT

The children [X] born in 2007 and [Y] born in 2008 live with the maternal grandparents Ms Haight and Mr Haight.
The mother spend time with the children at such times and on such occasion as she and the maternal grandparents agree from time to time.
The father spend time with the father at such times and on such occasions as the parties agree from time to time and failing agreement if the father does not return to live within a location with a 150km radius of the [M] Post Office on each Saturday commencing 2 May 2009 between the hours of 10:00am and 5:00pm with the children to be exchanged between the father and the maternal grandparents at a location to be agreed between them and failing agreement to be the [M] Police Station.
The father advise by text message to the maternal grandparents at least 24 hours prior if he is unable to attend to spend time with the children for any reason.
The maternal grandparents and the father exchange mobile phone numbers in order to be able to exchange text messages to arrange times regarding the time the father is to spend with the children and necessary details for handover.
If the father returns to [M] he is at liberty to have the matter re-listed on short notice to spend time with the children.
Pursuant to section 68L of the Family Law Act 1975 that an Independent Children’s Lawyer be appointed to represent the interests of the children [X] born in 2007 and [Y] born in 2008 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address
Further consideration of the matter is adjourned to 15 June 2009 at 9:30am for further directions when it is anticipated the independent children’s lawyer will be appointed and consideration can be given as to whether or not a family assessment should be prepared and who should prepare it.
A copy of the reasons for judgment be transcribed and provided to all parties concerned.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 818 of 2009

MR HAIGHT & MS HAIGHT

Applicants

And

MS TABER & MR OAKLEY

Respondents

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally. As an independent children’s lawyer has been appointed, it is appropriate that the reasons be transcribed and released to each of the parties.
Before me this morning are interim proceedings concerning care arrangements for two young children. They are [X], who was born in 2007 and [Y], who was born in 2008.
It is a difficult case for a variety of reasons but primarily because the children are currently separated. [X] is in [H] in Victoria. [Y] is in [M] in South Australia. All who are concerned with caring for the two children agree that it is not ideal that the children should be separated.
In addition, given the children's tender years, it is I think self-apparent that they need to maintain relationships with both their parents and indeed others who are interested in their care. Given their current circumstances, it is difficult to see how these important relationships can be maintained.
The applicants in these proceedings, which were commenced in early March 2009, are Ms Haight and Mr Haight. They are the children's two maternal grandparents. They live in [M]. Since 3 February 2009 [Y] has been primarily living with them.
On or around 8 February 2009 [X] came into the care of Mr & Mrs O, the children's paternal grandparents. How [X] came into Mr and Mrs O's care is controversial.
Mr and Mrs O live in [H] in Victoria. They are not currently seeking any orders in these proceedings, although they have been given the opportunity to do so.
Mr and Ms Haight, at this interim stage, want the two children reunited in their care in [M].
The children's parents are Ms Taber and Mr Oakley. I will refer to each of them by their given names, not out of any disrespect, but just for ease of reference.
Ms Taber lives in [M], a short distance from her parents. Recently she has been unwell, suffering from depression. Ms Taber concedes that she is not currently able to care for both children.
It is her Ms Taber’s case that she currently gets on well with her parents and sees [Y] daily. She would also like to be able to see [X]. In the longer term, she wishes to resume full-time care of both children, when she has recovered her health. At this stage she supports her parents in their application.
Mr Oakley lives with his parents in [H] and has done so since 24 January 2009. In the short and long term, he wishes the two children to live with him in [H]. He has the support of his parents in this. In the shorter term, he proposes that, if the children live with him in [H], there should be some supervised time between the children and their mother. Precisely what the mechanics of this would be he has not set out in any great detail.
In addition, Mr and Ms Haight, given the geographical issues which arise, have no clear proposals as to how Mr Oakley could see the children if they are successful with their application, particularly if

Mr Oakley remains living in [H].
Mr Oakley would prefer to remain living in [H], where he has accommodation with his parents, but is prepared to consider returning to South Australia, although he has no clear plans in this regard. In the past, albeit it seems for fairly short periods of time, he has lived in the [M] township.
These proceedings have been difficult for all concerned. They have evinced a high level of emotion. On several occasions Mr and

Ms Haight have travelled to court from their home in [M].
Mr and Mrs O Senior and Mr Oakley have attended proceedings by telephone. It has taken Mr Oakley some time to secure legal representation on his behalf. Similarly, Ms Taber has only recently been represented separately from her parents.
Given the complexity of the issues in this matter, particularly issues relating to Ms Taber's ongoing psychological health and issues which both the parents have raised about the parenting abilities of the other, I intend to make an order that the two children be independently represented in these proceedings.
The interim hearing took place yesterday, 22 April 2009. It concluded late in the afternoon. The proceedings have been reconvened this morning, at around 8.30 am. Mr and Ms Haight cannot be here, nor can Ms Taber. For obvious reasons the Oakleys, given that they are in [H], similarly cannot be present in court.
For all those reasons I intend ordering that the reasons for judgment be transcribed, so that all concerned can read what I have said about this matter and, I hope, understand my reasoning and the reasons why I have made the particular orders I have done.

Background

By way of background, Mr Oakley and Ms Taber began to live together in early 2007. It seems that they had met one another in the previous year. I think it is clear from reading what all concerned have said in this matter that their relationship was an unstable and, at times, volatile one. Certainly it was marked by periods of separation.
My impression is that both the parents are fairly young people and perhaps are not fully mature. I am not sure about that. Certainly it does appear to be the case that they have never had a particularly firm basis on which to co-parent these two young children.
It is Ms Taber's position that Mr Oakley is a violent and aggressive person who, when the parties were living together, essentially controlled her life. She and her mother, Ms Haight, also say Mr Oakley has a severe cannabis addiction and has abused both illicit and prescription drugs in the past.
For his past, Mr Oakley asserts that Ms Taber is a violent and emotionally unstable person, primarily because of her depressive illness which is longstanding. In this context, he says that he did more of the basic parenting of the two children, after they were each born.
It is Mr Oakley's case that Ms Taber has been essentially disinterested in the care of both children and has devolved responsibility for them onto him and, on occasions, onto others.
Ms Taber's position is that the parties separated around two months after [X]'s birth. It was her case that Mr Oakley unreasonably concealed [X] from her, when her parents came to where Mr Oakley and Ms Taber were living in [W] on the Yorke Peninsula. As a result, Ms Taber went to court to seek an order in respect of [X].
On 22 August 2007, Lindsay FM made an order, in the absence of

Mr Oakley, that [X] should live with her mother. Ms Taber's application was served on Mr Oakley, at [W], on or around 16 August 2007.
Mrs O says that she returned [X] to the mother, prior to the court hearing, at the [S] police station. Whether that is true or not, does not really matter, but thereafter it is Ms Taber's position that she provided more of the care for [X] than Mr Oakley.
In any event, at some time not too long after August 2007 the parents must have reconciled. It is unclear to me precisely what happened when the parties reconciled, but the impression I have is that their relationship was not a particularly stable one.
From time to time Ms Taber seems to have spent some time in [M]. Records which have been obtained from Families SA indicated that

Ms Taber, Mr Oakley and [X] also spent some time in [L], in the South‑East of South Australia. Mrs O says that the parents and [X] lived at various addresses in Adelaide before moving to [M].
It is clear that Ms Taber and Mr Oakley were living in [M] when [Y] was born. It is the mother's position that they were separated when [Y] was born but reconciled shortly afterwards.
The family has come to the notice of Families SA on several occasions. As a result of an order I made on 10 March 2009, Families SA have provided me with the following information:
On 17 September 2008 a notifier rang, expressing concern that Ms Taber was not taking her medication for depression. They also reported that the children, [X] and [Y], were regularly sighted to be dirty and unwashed. [Y] regularly smells, and [X] was left with a full nappy containing urine and faeces. The notifier also reported that the children were not being adequately fed.
The father was seen to slap [X] across the face as a form of discipline. The notifier said that [Y] did not receive enough contact from the parents and that when held by her father she was not held safely. It was reported that when approached about this the father responded aggressively.
The notifier said that two to three weeks ago the grandmother noticed a bruise on [Y]'s face. When asked about it, Ms Taber said that [X] had bitten her but there were no teeth marks evident. It was also reported that [Y] had a lump on her head level with the bruise. Ms Taber said that she hadn't noticed the bump.

Ms Taber was asked if she had taken [Y] to the doctor but she said "No". The maternal aunt took [Y] to a Family and Youth health nurse for an examination.
The notifier reported that the house was filthy and untidy, with items left around the house that posed a threat to young children. It was alleged that [X] had swallowed a $2 coin. The notifier said that the maternal grandmother was providing ongoing support and encouraging Ms Taber to engage with external support networks. A second notifier raised the same concerns. This notification was assessed as tier 2. The investigation concluded that abuse was not confirmed.
On 21 January 2009 a notifier was informed that Ms Taber had depression and that she allegedly smokes marijuana. Informant 2 said the house was unkempt and the children were not fed appropriately. Notifier only concerns.
On 2 February a notifier rang, concerned about Ms Taber's mental health. It was reported that she had said she was going to lose it with the children. Ms Taber requested that the maternal grandmother care for [Y] for some time, while she had some respite. The notifier was concerned that the children were left unsupervised in the house while Ms Taber was asleep. It was reported that [X] was not being fed properly.
The notifier was concerned that the children did not have a routine and that there was no socialisation with other children. The notifier said that [Y] was always tense and rigid, as if she thought something was going to happen. It was alleged that the police had been called to the house on a number of occasions because of domestic violence perpetrated by the father. This notification was assessed as tier 1.
Families SA staff visited the house and it is recorded that they found the house clean and tidy and there was adequate food appropriate for a baby and a small child. Ms Taber outlined some stresses she was under which left her feeling isolated and alone. The workers assessed that Ms Taber was well aware of her mental health, emotions and limitations, and that she had strategies in place to assist her if things became too difficult.
A follow‑up contact found Ms Taber in better spirits and more confident about getting on with her life. Abuse was not confirmed.
Those comments are read by me from the letter from Families SA, which is dated 18 March 2009. That letter came about as a result of my invitation to the Department to become involved in these proceedings, an invitation which was declined.
Something significant occurred on or around 1 January 2009, between Mr Oakley and Ms Taber. Mr Oakley was charged with some species of assault against Ms Taber. It is Ms Taber's position, I think, that

Mr Oakley essentially raped her.
However, Mr Oakley says that Ms Taber withdrew the charges against him a few days later. Ms Taber's position is that after this first assault, on or around 10 January 2009, Mr Oakley again assaulted her. For his part, Mr Oakley denies this allegation.
It is the position of Mr and Mrs O that [X] and [Y] were with them for around about a fortnight, from Boxing Day of 2008 onwards. Mrs O returned the children to Ms Taber at some time in early January.
It seems to be the case that although there is some suggestion that

Ms Taber and Mr Oakley discussed the possibility of reconciliation, they separated around about the incidents in January of 2009. Mrs O is clear that Mr Oakley came to live with her and her husband, in [H], on 24 January 2009.
Ms Taber is, I think, critical of Mr Oakley for essentially abandoning her and the children, when she was ill and vulnerable. This is a criticism which is taken up by Mr and Ms Haight. Certainly it is clear that the situation in early January had come to some point of crisis.
It is difficult if not impossible for me to unravel precisely what happened between Mr Oakley and Ms Taber around about this time, particularly in the absence of any independent evidence.
In particular, I am uncertain what records the police have about the various assaults, which were notified to them and why charges were not pursued. It is clear that when Mr Oakley was required to return to [M], for some court proceedings, but that charges were withdrawn against him.
In any event it is clear that by early February of 2009 Ms Taber was under a great deal of pressure and stress. On 3 February she felt she could not cope with caring for both children and she placed [Y] with her mother, Ms Haight.
On 8 February 2009 Mr and Mrs O Senior came to [M] to visit. At this stage Ms Taber says she asked them to care for [X] for a defined period of time – a period of a fortnight is the period she suggests was discussed. In her affidavit Mrs O says she was concerned at [X]'s appearance. She was said to be thin and quiet. Mrs O says that

Ms Taber told her that [X] was missing her dad. It is Mrs O's position that Mr Oakley is a highly competent parent.
It is Mr Oakley's position that he is more than capable of caring for both children. It is his case that Ms Taber is currently clearly incapable of parenting the two children and, in these circumstances, it is better that the children be cared for by a parent rather than grandparents, no matter how well meaning those grandparents are.
In this context, he says that it is unclear how long Ms Taber will be unwell. The longer that she is unwell the greater is the potential for the children's attachments to a parental figure to be undermined, to their long‑term detriment.
Mr Oakley is critical of Ms Haight, saying that she has issues to do with an injury to her back and the medication she takes for it, concerns which are vigorously refuted by Ms Haight. For her part, Ms Taber asserts that Mr and Mrs O senior are not well-motivated people but are, like their son, heavy users of cannabis. Mr Oakley denies that he has any significant issues to do with drug use or that he has a serious criminal record, as Ms Taber asserts.
These are interim proceedings and, as a result, I have not had the opportunity of seeing any of the parties in the witness box being cross‑examined about these various issues. In addition, I suspect, particularly from the maternal grandparents' perspective, the affidavit material in question has been fairly hastily prepared.
In all these circumstances, it is difficult if not impossible, for me to make findings of fact about the various matters which the parties have each raised.
In addition, at this interim stage, I do not have any expert evidence from a psychologist or experienced social worker in regards to the developmental needs of these two children in particular and what is their level of relationship with those who are concerned in providing for their care. However, as the summary indicates, this is a case which raises very significant concerns which I need to summarise now.

Issues

The children are separated; all agree that it is better that they live in the same household. [X] currently has no level of relationship with her mother. In the past, it seems clear that the two have spent much time together, living in the same household. Similarly, [Y] has no current level of relationship with her father.

[Y] is a young child and it would be, I think, not optimal that she does not have an opportunity to form some form of attachment with her father or, if there is an attachment currently in existence, for that attachment to be extended. The longer [Y] does not see her father the more vulnerable this relationship becomes.
In addition, the relationship between siblings is potentially one of the most important of human relationships. I am of course concerned that the two sisters are currently separated from one another. I am also gravely concerned that there is a lack of concrete proposals to deal with the issue of the separation of the siblings in the short term.
Regrettably, and perhaps as an inevitable consequence of these adversarial proceedings, both sides of the children's families have concentrated on an all‑or‑nothing outcome.
In addition, I am concerned that I have no expert evidence about the mother's psychological health. In particular, how long it is anticipated she will be unwell and unable to parent the two children capably.
I should however say that it is the mother's position that she is progressing well and is doing much better than she has in the past. It is her case that she has much support, both emotionally and professionally, in the [M] area.
However, in the past it seems clear that the mother's relationship with her parents has been strained, particularly whilst she has been involved with Mr Oakley, a person of whom undoubtedly Mr and Ms Haight do not approve.
As such, it is unclear to me how long it may be before the mother is able to resume full-time care of the children and whether there will be issues arising between her and her parents with respect to its timing.
In an ideal situation, I think it would obviously be preferable that a parent rather than a grandparent parent the two children. Certainly that seems to be Mr and Ms Haight's view.
I am also concerned about the attitude both Mr Oakley and Ms Taber have displayed to the responsibilities of being a parent. These concerns are manifest by the Families SA information and also what I think is clearly the unstable nature of their relationship.
I am also concerned at the serious allegations of drug use and family violence concerning Mr Oakley. These concerns have been of such moment that they have involved the police in the past, but, as I have already said, these issues have not been teased out in any great detail at this stage.
In this context I am concerned at the lack of impartial evidence about the parenting capabilities of both Mr Oakley and Ms Taber. I am also concerned at the lack of certainty and the high level of ambivalence about what precisely occurred on 8 February 2009. However, I think it basically unlikely that the mother would have agreed to an open-ended arrangement for [X] to go and live with her paternal grandparents.
Even if such an open-ended arrangement had been offered, it seems to me that a responsible person must have known that such an offer was fraught with all manner of difficulties which must have been readily apparent, involving taking a child many hundreds of kilometres away from one of her parents and a sibling, particularly when that parent was obviously unwell.
In addition, Mr and Mrs O Senior do not currently seek orders in respect of the children. The arrangement of 8 February 2009 did not originally involve Mr Oakley. In mid-January he was ostensibly, at least, content to leave the children with Ms Taber.
I think he is open to some criticism for some level of opportunism in respect of the orders which he now seeks, particularly as Mr and

Mrs O, who were the agents of [X] coming into his care in the first place, are not seeking any orders in this matter.

Legal Principles

It is now necessary for me to turn to the legal principles, which I have to apply in this matter. The service of [X] and [Y]'s best interests is the most important consideration in this case [Family Law Act section 60CA]. The same principles apply at both the interim and the final stage, the distinction being that interim hearings do not determine long-term arrangements for the care of a child, whereas final proceedings do.
It is frequently the case that the court is called upon to make interim determinations against a background of urgency, in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve the best interests of the child or children concerned.
The aims and principles of the part of the Family Law Act [section 60B] which deals with children, emphasise the desirability of a child's parents being as closely involved as possible in their child's life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.
Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child's parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
In addition, the court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child's interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Given the circumstances of this case, I think it is clear that the presumption of equal shared parental responsibility should not be applied at this interim stage. I do not think it would be appropriate to apply the presumption. At this stage, the case is not about allocating parental responsibility between Ms Taber and Mr Oakley. Rather, it is about providing some form of legal triage, in the crisis situation which has arisen as a result of a combination of factors.
These factors include the mother's illness, the uncertainty and volatility surrounding the parents' relationship, particularly after the commencement of January 2009, and what I think is best described as the mother's ill-considered action on 8 February 2009.
Thereafter the parents and indeed the grandparents on both sides' have displayed an inability to work through the consequences of this action, in terms of the best interests of the two children concerned, because of their poor and mistrustful relationship with one another and their inability to communicate effectively.
My impression is that neither side has any great facility to compromise or indeed, sadly perhaps, focus on the best interests of the children concerned. Necessarily this situation makes it inappropriate for the presumption to be applied at this stage.
In the short term, I have to concentrate on what I consider will be the best outcome for the two children concerned. In considering the children's best interests I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider: primary considerations and additional considerations.
There are two primary considerations. Firstly, the need to ensure that the children have a meaningful relationship with both their parents. Secondly, the need to ensure that they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous. Again, their application must depend on the particular circumstances of the case concerned, although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation.
In determining the outcome of a particular case, one or more of the additional considerations may come to the fore. The Full Court [see Goode & Goode (2006) FLC 93-286] has directed that it is necessary for the court to consider all of the section 60CC factors applicable and, if possible, make findings about them.
I am satisfied that the children will be protected from abuse, neglect or family violence, if they are living in the care of Mr and Ms Haight. I have some concerns about issues to do with both of the parents' previous parenting of the children concerned, particularly in the context of what has been said by Families SA and the various matters which have led to this current state of affairs. In particular, I do not find it easy to dismiss Mr and Ms Haight's claims of family violence involving Mr Oakley, untested as those allegations are.
The current arrangements are clearly unsuited to the children having any proper and meaningful level of relationship with both of their parents. The mother currently has no meaningful level of relationship in respect of [X].
Given [X]'s age, the relationship between the two is not one that can be conducted by means of telephone or some electronic form of media. Given Ms Taber's state of health and her vulnerability, it is difficult to see that she could go to [H] regularly, to see [X].
Similarly, as matters currently stand, the father has no level of meaning in his relationship with [Y]. He has not seen [Y] for approaching four months. Given that [Y] has not yet had her first birthday, it is likely to be the case that she has no form of relationship with her father whatsoever.
Although it is difficult to see Ms Taber being able to move easily, the same, I do not think, can be said about Mr Oakley. In the past he seems to have been a highly mobile person. As far as I know, he is in good health. As such, it is not beyond the bounds of possibility that he can move.
Cases involving the relocation of one parent and child of a relationship away from the other parent concerned are difficult, particularly because of the entitlement which a child has to have a meaningful relationship with both of his or her parents, regardless of the fact that the parents concerned are unable to live together.
The High Court has determined that relocation cases require a particularly close and delicate analysis of the various issues involved. Accordingly, it is generally considered preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocation have potentially serious ramifications for children, particularly young children, in terms of their parental relationships.
In this context the Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of his parents, particularly if that recent development has been created or initiated by the action of one parent or one party alone [see Campbell & Spalding 15 May 1998 NA4 of 1998].
At both the interim and final stage of any case involving a relocation, the best interests of the child concerned remain paramount. Depending on the circumstances of the case concerned, it may be incumbent upon the court to investigate the possibility of one parent moving to be closer to any child concerned, rather than necessarily directing that a child be moved closer to that parent or be restrained from moving in the first place.
The family law legislation has been significantly amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006. Prior to the amending act there was a focus on maintaining stability in arrangements for a child, pending a final hearing. Accordingly, at the interim stage, the court was directed to exercise considerable caution in respect of relocation issues, particularly unilateral relocations which occurred independently of a parent.
In the case of Morgan & Miles (2007) FamCA 1230, Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows.
It is highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.
Although the arrangements for [Y]'s care are not longstanding, it seems to me that she is in a currently stable situation. She sees her mother regularly, if not daily. In my view it is difficult to see that it would serve her best interests for her to move to live in [H] to be with her father and [X].
In these circumstances I think it is incumbent upon me to investigate the possibility of the father moving closer to [Y], and, in terms of the desirability of the two children living in the same household, these factors, in my view, tend to support the outcome which is likely to be most optimal for these two children, being that they live in [M] with Mr and Ms Haight.
In reaching this conclusion I consider the nature of the relationship that the children have with each of their parents and indeed with one another. It seems to me that both parents have been involved significantly in the care of the children. It also seems fairly clear to me that Mr and Ms Haight have also been involved as a support or safety net, certainly for Ms Taber but also, at times, for Mr Oakley, in their care of the children although they (Mr and Ms Haight) do not particularly approve of him.
As I am at pains to point out, all of the parties agree that the two children should live together. I think in this difficult case, again the considerations of the children's relationship dictate that it is likely to be better that [X] returns to live in [M], and given the greater ease of movement that Mr Oakley is likely to have that he moves closer to the children, rather than vice-versa. I am fortified in that view, given the controversial circumstances by which [X] came into the care firstly of her paternal grandparents and then of her father.
In this case I am concerned at the willingness and ability of all concerned to facilitate and encourage proper relationships between the two children concerned and each of their parents. I think criticisms can be levelled against all concerned. Sadly, the grandparents on both sides of these children's family mistrust one another and there are no honest brokers available who are able to break the deadlock. The sad impression I have is that, to a certain extent, the father and his parents have been content to hold [X] as a metaphorical hostage in the hope that possession of her will lead to [Y] coming into their care.
I am required to consider the characteristics of the children concerned, and particularly the maturity of any child concerned. I also have to consider the likely consequence of any change in a child's circumstances, particularly the separation from one or other of his or her parents.
In this context, given [Y]'s age, I am greatly concerned at the potential for emotional disturbance to be occasioned to her if she is moved to [H]. Again, these considerations seem to militate in favour of the two children being reunited, in Mr and Ms Haight's care, in [M].
Given the circumstances of this case, I am concerned at the capacity of both Ms Taber and Mr Oakley to parent these children appropriate, and at this stage I think the jury remains out as to the level of responsibility that each of them has demonstrated to the responsibilities of being a parent.
This is a case which creates great practical difficulties in terms of the children being able to spend time with both of their parents and maintain a proper degree of personal relationship with their parents on a regular basis.
To a large extent, I think this difficulty has come about because of the circumstances which saw [X] go to [H] in the first place. As I am at pains to point out, I am unable to ascertain precisely how that came about and what was said, but I think it was perhaps foreseeable that the children being separated and [X] going to [H] was not likely to be a satisfactory long-term solution to the issues created by this difficult case, particularly given the ages of the children concerned and the lack of any practical solutions to the problems created by the separation of these two children.
Yesterday, during the hearing of the matter, I stood the matter down so that counsel for Mr Oakley could speak with him by telephone and see what his position was. I suspect, for obvious and understandable reasons, he had concentrated in the presentation of his case on his preferred option that the two children come and remain in his care in [H].
For the reasons I have provided, I am not inclined to that outcome because I do not think it would be in the short-term and longer-term interests of these two children. It seems to me that it is likely to be in the children's best interests if Mr Oakley gives some consideration to moving closer to [M], and I am told by his counsel, Ms Lee, that that is something that he would consider.
At this stage the emotional topography between all concerned is difficult. At this stage, I suspect, a lot of the information that is likely to be available to me, particularly in the form of some independent and expert assessment of the two children's needs is not yet to hand. It is important, I think, that Mr Oakley plays a role in any report that is prepared. The two children concerned have lived most of their brief lives in South Australia. Mr Oakley agrees that the case will be heard in Adelaide; South Australia is the appropriate forum.
To a large extent I think Mr Oakley must surrender his short‑term personal aspirations and consider moving back to South Australia, particularly into the [M] area, so that a proper focus can be put on the long-term and medium-term best interests of these children.
I am going to make an order that the children be independently represented. I think this case meets a number of the criteria set out by the Full Court in the case of Re K [(1994) FLC 92-461.
I have come to the conclusion that Mr Oakley should return the two children to [M] by this coming Sunday. What his plans will be, I am not sure, but if he remains living in [H], I think I should make an order that he sees the children regularly during the day, perhaps on the weekend.
It is not an insurmountable distance for a young man, I think, to travel between [H] and [M] on a regular basis. It is not ideal, obviously, but I do not think the distance is insurmountable, particularly because I think Mr Oakley is young. Obviously there will be expense involved in that.
However, if Mr Oakley elects to return to live in the [M] area, I am going to grant him liberty to apply on short notice to relist the matter, to revisit the arrangements that I am proposing in the short term for him to spend time with the two children.
I am also going to adjourn the matter for about six weeks, so that the independent children's lawyer can be engaged at an early stage. I think that will also be the time when consideration should be given to the engagement of some sort of formal assessment process in respect of these two children, which needs, I think, to be done sooner rather than later. I also suspect that the independent children's lawyer may wish to subpoena documents, but that of course is a matter for the independent children's lawyer when appointed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one-hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 23 April 2009