Halston & Neast
[2023] FedCFamC2F 1226
•25 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Halston & Neast [2023] FedCFamC2F 1226
File number(s): ADC 3567 of 2023 Judgment of: JUDGE DICKSON Date of judgment: 25 September 2023 Catchwords: FAMILY LAW – PARENTING – urgent interim proceedings brought by the father – where the mother has unilaterally relocated to country South Australia with the children – children aged four and nine years – where the mother is the primary caregiver – current time spending arrangements for every weekend with the father – alleged family violence perpetrated by the father – consideration of best interests – orders for the children to return to metropolitan Adelaide Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA. Cases cited: Beaton & Beaton [2007] FamCA 1230
C & S [1998] FamCA 66
Goode & Goode (2006) 36 FamLR 422
Morgan & Miles [2007] FamCA 1230
Division: Division 2 Family Law Number of paragraphs: 79 Date of hearing: 19 September 2023 Place: Adelaide Counsel for the Applicant: Mr Lewis Solicitor for the Applicant: Mahony’s Lawyers Solicitor for the Respondent: Steven’s Law Solicitor for the Independent Children's Lawyer: Ryder Family Law ORDERS
ADC 3567 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HALSTON
Applicant
AND: MS NEAST
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
25 SEPTEMBER 2023
THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
Parental Responsibility
1.The parties have equal shared parental responsibility for the children X (‘X’), born in 2014 and Y (‘Y’), born in 2018 (‘the children’).
School Holiday Time Spending
2.The children spend equal time with the parties during the school holidays as agreed between the parties in writing.
3.Where no agreement is reached, that the children spend time with the Father during the short school holidays from the conclusion of school on the last Friday of the school term (or 3:00pm) to the second Sunday thereafter at 5:00pm and thereafter with the Mother to the commencement of the following school term.
4.Where no agreement is reached, that the children spend time with the Father during the long school holidays from the conclusion of school on the last Friday of the school term (or 3:00pm) to the second Sunday thereafter at 5:00pm, and each alternate week thereafter from Sunday 5:00pm until Sunday 5:00pm until the commencement of the new school term.
Special Occasions
5.Mother's Day and Father's Day:-
(a)That the children spend time with the Mother on Mother's Day from 9:00am to 5:00pm; and
(b)That the children spend time with the Father on Father's Day from 9:00am to 5:00pm.
Communication
6.The parties within twenty-four (24) hours from the date of these Orders, shall download and use the parenting application ‘AppClose’ for all communication with respect to the children's health, welfare and education save and except for in an emergency when the parties shall be permitted to contact each other by mobile telephone.
Medical
7.Each party shall inform the other of any accident or injury, medical condition or illness suffered by the children whilst in their care including the diagnosis, treatment and any medication administered as soon as reasonably practicable.
8.Each party shall advise the other party in advance of the children's medical and allied health appointments including but not limited to appointments with general practitioners, allied health practitioners, specialists, psychologists/psychiatrists, counselling and the like by at least seven (7) days.
Courses
9.On a without admission basis, the Father do enrol and engage in a Men's Behavioural Change and anger management counselling with either Mr B or a Counsellor at the C Centre.
10.Both parties forthwith enrol in and complete the following:-
(a)Kids are First; and
(b)Circle of Security.
Injunctions
11.The parties are mutually restrained on a without admission basis from the following actions or allowing any third party to do so:-
(a)Consuming illicit substances or alcohol to excess twenty-four (24) hours before the children come into their care, and the parties or bringing the children into contact with anyone who has;
(b)Abusing denigrating or criticising the other party or the other party's family in the presence of the children, or from allowing any other person to do so;
(c)Discussing these proceedings or any allegations or issues raised in these proceedings with the children, or in their presence or from allowing any other person to do so;
(d)Publishing any information from these proceedings or any issues or allegations raised in these proceedings on any form of social media whatsoever, including but not limited to Facebook;
(e)Making voice or video recordings of any handover;
(f)Using any form of physical discipline on either of the children or allowing anyone else to do so.
Specific Issues
12.Each party is hereby authorised to obtain the children's schools or childcare providers all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents or normally invited.
13.Each party has liberty to telephone the children on Tuesdays and Thursdays at 5:00pm when the children are not in that party's care with the other party to facilitate the same.
14.The children be at liberty to telephone the party whose care they are not in at any reasonable time they request it.
THE COURT FURTHER ORDERS UNTIL FURTHER ORDER THAT:
15.No later than Friday, 24 November 2023, the mother do return the children X born in 2014, and Y born in 2018 ('the children') to reside in the metropolitan area of Adelaide.
16.The said children live with the mother in Adelaide.
17.The said children do spend time with the father as follows:
(a)Pending the children's return as provided for in paragraph 15 herein, on each weekend from 5:00pm Friday until 5:00pm Sunday (and extending to 5:00pm in the event of a Public Holiday Monday);
(b)From 1:00pm on 25 December 2023 until 6:00pm on 26 December 2023;
(c)Upon the children's return to reside in the metropolitan area of Adelaide, as follows:
(i)On each weekend from the conclusion of school Friday to 5:00pm Sunday (extending to 5:00pm in the event of a Public Holiday Monday); and
(ii)At such other times as agreed by the parties in writing.
18.In the event that the mother fails to comply with paragraph 15 herein then:
(a)The children live with father; and
(b)The children spend time with the mother each weekend from 5:00pm Friday to 5:00pm Sunday.
19.The child X be re-enrolled and do attend at the D School.
20.The child Y be re-enrolled and do attend at either E Early Learning Centre or the F School as appropriate.
21.Handovers pursuant to paragraph 17.(a) and 18 and unless otherwise ordered herein, do occur at the G service station located in the township of Town H South Australia and each party is at liberty to utilise an agent to conduct handovers on their behalf.
22.Handovers pursuant to paragraph 17.(c) and unless otherwise ordered herein, do occur at such location as agreed between the parties in writing, or in default of agreement, as nominated by the Independent Children's Lawyer.
23.The parties and their legal representatives do attend a Family Dispute Resolution Conference at the Legal Services Commission of South Australia on Wednesday, 6 December 2023 at 1:30pm, following the release of the Child Impact Report.
24.All interim applications are hereby dismissed.
25.Proceedings be adjourned for Trial directions and management to Tuesday, 20 February 2024 at 9:30am, such hearing to take place in open Court on a face-to-face basis in accordance with Court protocols.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
The Applicant Father, Mr Halston ('the father'), and the Respondent Mother, Ms Neast ('the mother') are the parents of two children, namely X born in 2014 and Y born in 2018 (‘the children’).
The parties are in dispute regarding living arrangements for the children. At the heart of the current dispute is the father's application seeking to have the children return to reside in the metropolitan area of Adelaide. The mother opposes the father's application and seeks to be able to reside with the children at Town J on the Region K in country South Australia. Town J is approximately 150 kilometres from Adelaide one way.
For the reasons set out herein, the Court proposes to order that the children return to reside in the metropolitan area of Adelaide and to live with their mother and spend substantial and significant time with their father pending Trial.
BACKGROUND
The father is 37 years of age and is employed as a factory worker. The father is in a domestic relationship with Ms L. Ms L is on maternity leave from her usual employment as a health care worker having given birth to a child, namely M born in 2023.
The mother is 40 years of age and is unemployed. She has been the children's undisputed primary caregiver since they were born. The mother has a child from another relationship namely N aged 20 years. The mother now resides in a domestic relationship with Mr O. There is a dispute as to when the mother commenced a relationship with Mr O. The mother asserts being with Mr O since early 2023 whilst the father asserts the mother made the relationship “official” by way of a Facebook post in mid-2023. The mother and the children are now residing in a property said to be owned by Mr O close to Town J.
The parties met in 2012 and had what could be described as an "on/off" relationship before finally separating in February 2019.
The child X is nine years of age. It is an agreed position between the parties that X is a child with special needs having been diagnosed with autism, ADHD and anxiety. X consults with a number of health professionals in Adelaide for treatment and support of these conditions. Up and until late 2023, X had been attending since reception, the F School. At the date of argument, X had been unilaterally enrolled at the Town J School by the mother.
The child Y is four years of age and in Adelaide had been attending at the E Early Learning Centre. Upon the mother moving to Town J, Y had been unilaterally enrolled by her at the Town J Kindergarten.
Information provided by way of an Information Summary Report from the South Australia Police dated late 2023 confirms that the parties' relationship would be categorised as one involving family violence.[1]
[1] Family Law Act 1975 (Cth) s 4AB(1).
A violent incident took place between the parties in early 2019 wherein the father is alleged to have punched the mother to the face with a closed fist. The father was subsequently arrested and charged with aggravated assault and an Intervention Order was issued for the protection of the mother. For reasons that are unexplained, the mother later requested to withdraw the charge against the father. The incident in 2019 was the last reported incident with previous incidents described as "domestic abuse" recorded in the SAPOL Information Summary Report having occurred in 2013, 2014 and mid-2014 respectively.
Following separation, the parties were able to negotiate arrangements for the care of the children without the need for Court intervention. The parties agree that until recently, the children had been in the care of the father each weekend from the conclusion of school/childcare Fridays to Sunday evenings.
In mid-2023, the father commenced a new role at his place of employment which required the father to undertake shift work with 12-hour shifts either during the day or at night. The father's work roster for the balance of 2023 is ‘Annexure -11’ to his affidavit filed on 5 August 2023. During submissions, the father's counsel informed the Court that the father's shifts at work were either from 7:00am to 7:00pm or 7:00pm to 7:00am in accordance with the cycle set out in the roster being two shifts in one week and five shifts in the second week.
In mid-2023, the father alleges that he was informed by the mother's elder child N that the mother had been asked to vacate her rental premises and was intending to move to Town J to reside with her new partner. In response to an enquiry made by the father, the mother did not confirm nor deny her planned relocation. The father was subsequently provided with screenshots taken by N of the mother advertising furniture for collection on Facebook.
In mid-2023, the parties attended mediation at P Counsellors but failed to reach agreement and the father was issued with a Section 60I Certificate.
On 27 July 2023, the father caused correspondence from his solicitor to be delivered to the mother's address by way of registered post objecting to any removal of the children from the Adelaide metropolitan area.[2] The mother did not reply to the correspondence.
[2] The correspondence is annexure -2 to the father's Affidavit filed 5 August 2023.
On 2 August 2023, the father received an SMS message from the mother advising that the collection of the children would take place at Town Q being a location approximately mid-way between Town J and Adelaide. To his mind, this confirmed to the father that the mother had moved to Town J despite written notice from his solicitor that she should not do so.
The father filed an urgent application seeking the return of the children and parenting orders on 5 August 2023. The matter was allocated to the Evatt List thereafter.
On 25 August 2023, the Court ordered that an Independent Children's Lawyer be appointed for the children given the nature of the allegations and the important issues in dispute between the parties.
At argument on 19 September 2023 the Independent Children’s Lawyer confirmed that she had driven to Town J to meet with X at his new school. The Court acknowledges the effort made by Ms Ryder to discharge her statutory duty on behalf of the children in undertaking this task, given that it would have involved a minimum three hour round car trip on a weekday.
DOCUMENTS RELIED UPON
The father relies upon an Outline of Case Document (Interim Hearing) filed 25 August 2023 which sets out in 'Part B' the documents relied upon by him. In addition, the father relies upon an Affidavit in Reply filed 15 September 2023 and a Costs Notice filed 18 September 2023.
The mother relies upon an Outline of Case Document (Interim Hearing) filed 24 August 2023 which sets out in 'Part B' the documents relied upon by her. In addition, the mother relies upon a Costs Notice filed 18 September 2023.
The Independent Children's Lawyer relies upon an Outline of Case Document (Interim Hearing) filed 18 September 2023 which sets out in 'Part B' the documents relied upon by her.
To their credit, the parties were also able to present to the Court a draft Consent Minute of Order which set out the orders to be made by consent on an interim basis.[3]
[3]See the Draft Consent Minutes of Order marked MFI-1 tendered on 19 September 2023.
FATHER'S POSITION
It is the father's position that the mother deliberately set about to move to Town J with the children in the face of written advice from the father via his solicitor that she not do so. The father contends that the mother has overstated her accommodation difficulties in Adelaide in order to pursue a relationship with Mr O.
The father argues that the mother has not put before the Court any evidence of enquiries made by her to reside with family members here in Adelaide. Whilst the father accepted through his counsel that the mother had made "some effort" to obtain accommodation in the Adelaide area, the father remains sceptical as to whether or not those enquiries were genuinely made given that they appear, on their face, to have been made within a very short period of time. Whilst submitting that the father accepted that finding accommodation "is difficult", the father submitted that the difficulties were of the mother's own making.
It is the father's assertion that the mother has made no bona fide effort to obtain accommodation and has used her lack of accommodation as a guise to cover her true intentions for moving to Town J.
The father submits that if the mother is permitted to remain in Town J with the children, then it will be very difficult for the Court to unwind those arrangements at Trial as the children and the mother will become embedded in the Town J local area. Furthermore, the father submits that by remaining in Town J there is no capacity for the father to increase or vary his time with the children over and above that already agreed between the parties given the distance involved.
There was no submission made by the mother that the father could move closer to Town J. In this sense, I accept that the father is not able to move to Town J given his own domestic and employment commitments here in Adelaide. By necessary implication, the father requires the mother to subordinate her accommodation and her relationship to those of the father.
The father's counsel argues strongly that the Court should not condone the mother's decision to move to Town J with the children in the face of the father's stated opposition. Mr Lewis argues that the mother has presented the situation as a "fait accompli".
The father argues that to permit the mother to remain in Town J on an interim basis and on the facts of this case, would be to make his application for shared care very difficult, if not render it nugatory, at Trial.
As stated herein, the parties have been able to agree a range of orders relating to the children for school holidays, special occasions and what might be described as ‘specific issues.’
The one remaining special occasion dispute relates to time spending over the Christmas period in 2023. The father seeks an order that would permit the children to be in his care from 9:00am Christmas Eve to 1:00pm Christmas Day in 2023 and with the mother from 1:00pm Christmas Day to 6:00pm Boxing Day. It is the father's case that he did not spend time with the children over the Christmas period in 2022 and that he has never spent time with the children for Christmas Eve and the morning of Christmas Day. Accordingly, the father now seeks to regulate Christmas arrangements to ensure parity between the parties.
MOTHER'S POSITION
It is the mother’s position that she moved to Town J with the children due to an accommodation crisis. The mother deposes in her affidavit,[4] that in mid- 2023 she was advised by the real estate agency that her landlord would not be renewing the lease for her rental property as he intended to renovate. Furthermore, that the landlord intended to increase the rent from $350.00 to $600.00 per week which she could not afford.
[4] See the Affidavit of Ms Neast filed 24 August 2023 at paragraph 29.
The mother alleges that in late 2023, she “applied for approximately 300 properties”, all of which were unsuccessful.[5] ‘Annexure -1’ to the mother’s affidavit are copies of what would be described as pro forma emails for rental properties of which the mother had made enquiries.[6]
[5] See the Affidavit of Ms Neast filed 24 August 2023 at paragraph 30.
[6] See the Affidavit of Ms Neast filed 24 August 2023 at ‘Annexure -1’.
In mid-2023 and not having secured any alternate accommodation, the mother asserts that Mr O offered for the mother and the children to live with him in his home near Town J. Fearing homelessness, the mother agreed.
In mid-2023, the mother and the children moved into the home of Mr O.
The mother concedes receiving the correspondence from the father’s solicitor on 27 July 2023. The mother alleges that she obtained legal advice from the Legal Services Commission of South Australia and was told “not to respond to the letter as there was no legal obligation on me to do so.”[7]
[7] See the Affidavit of Ms Neast filed 24 August 2023 at paragraph 34.
The mother appears to concede that she did not confirm with the father her intention to move to Town J nor did she seek any assistance from him. Given the parties’ poor co-parenting relationship, I think the Court can infer that the mother assumed any such assistance would not be forthcoming.
In essence, it is the mother’s position that faced with limited options, the only alternative to homelessness in Adelaide was to live with Mr O in Town J.
Further, the mother contends that despite the move to Town J, the father’s time with the children has remained the same in that the children have continued to see their father each weekend. The mother therefore argues that there is no prejudice to the father because he is spending the same amount of time with the children regardless of where they are living.
The mother argues that the children are now settled in their new living environment and have formed “a bond” with Mr O. The mother contends that having been the parent responsible for managing X’s health conditions, that she will continue to do so even though X’s health providers remain in Adelaide.
In short, it is the mother’s case that her move to Town J was motivated by necessity and no ulterior motive given that she has always supported the children’s relationship with the father.
In response to a query from the Court, the mother’s solicitor confirmed that if the children were ordered to return to reside in the metropolitan area pending Trial, the mother would return with the children and continue her role as primary caregiver.
On the issue of Christmas Day arrangements for 2023, the mother acknowledged that in 2022 the children had spent time with the father from the afternoon of Christmas Day until 27 December 2022. The mother seeks to be able to take the children to Christmas midnight mass in the evening of 24 December, ironically at R Church in Adelaide.
THE INDEPENDENT CHILDREN’S LAWYER’S POSITION
The Independent Children’s Lawyer filed an Outline of Case Document (Interim Hearing) on 18 September 2023. The Independent Children’s Lawyer proposes the following orders:
(1)That the father engage in a Men’s Behavioural Change course and Anger Management counselling;
(2)That the mother forthwith return the children’s residence to the Adelaide metropolitan area;
(3)That the children return to their previous school/ELC for the commencement of Term 4 2023;
(4)That if the mother is able to reside within a 30 minute drive of the children’s school and ELC, then the children live with the mother and spend time with the father on each weekend from 5:00pm Friday to 5:00pm Sunday and half of all school holidays;
(5)That in the event that the mother is unable to find accommodation in Adelaide, the children live with the father and spend time with the mother on the same basis as that promoted in paragraph 4 above;
(6)Mutual injunctions; and
(7)That the parties enrol in and complete a number of specific parenting courses.
The Independent Children’s Lawyer had met with X at his new school at Town J. It was the Independent Children’s Lawyer’s observation that X is an anxious child and burdened by the dispute between his parents. The Independent Children’s Lawyer had no specific concerns regarding the Town J school having visited there and met with the Principal. She described X as being in a small class of 15 children and with the school having put in place supports to assist him.
The Independent Children’s Lawyer reported that X loves both of his parents and enjoys a good relationship with both Ms L and Mr O. X reported missing his friends from F School and wanted “a bit more time” with his father.
X complained about his father “road raging and swearing” and his mother “whacking him with an object”. The Independent Children’s Lawyer submitted that based on interview, X appeared more comfortable in the care of his mother.
The Independent Children’s Lawyer, however, remained concerned as to the mother “uprooting” the children’s settled living arrangements in the way that she did. The Independent Children’s Lawyer submitted that the mother’s relationship with Mr O is “not yet tested” and with the Court noting that the mother had not filed any affidavit evidence from Mr O.
It was the Independent Children’s Lawyer’s clear impression that X was aware of the current litigation and had asked the Independent Children’s Lawyer “when he would be going to Court.”
The Independent Children’s Lawyer also expressed concern about the father’s anger management and behaviour given the incidents of alleged assault and “domestic abuse” offences identified in the SAPOL Information Summary Report and the complaints made by X of his father’s behaviour. Concerns were also raised as to how it was that the father came into possession of a recording made by X of the mother in her motor vehicle. The Court also observes the appalling SMS messages attached by the mother to her affidavit at ‘Annexure -2’ wherein the father has referred to the mother in the most abusive of terms including a statement that:
I’ll be grateful when u r dead…[8]
[8] See the Affidavit of Ms Neast filed 24 August 2023 at ‘Annexure -2’.
On balance, the Independent Children’s Lawyer considered that it was in the children’s best interests pending Trial to return to reside in the Adelaide area and to resume their education at their former schools/ELCs.
LEGAL PRINCIPLES
The legal principles to be applied at an interim hearing are the same as those to be applied at the final stage.[9]
[9] Goode & Goode (2006) 36 FamLR 422, [81].
The Court must regard the best interests of the children as the paramount or most important consideration.[10] The Court must take into account in determining a child’s best interests, the matters set out in section 60CC of the Family Law Act 1975 (Cth) (‘the Act’).
[10] Family Law Act 1975 (Cth) s 60CA.
Section 60CC of the Act sets out two classes of considerations, namely the primary considerations and a longer list of additional considerations. The Court is directed to give greater weight to the primary considerations which align with the objects and principles set out in section 60B of the Act.
There are two primary considerations, namely:
(1)The benefit to the child having a meaningful relationship with both of the child’s parents; and
(2)The need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.[11]
[11] Ibid s 60CC(2)(a) & (b).
Section 60CC(2)(a) of the Act directs the Court when applying the primary considerations to “give greater weight” to the primary consideration relating to protective concerns.
Additional considerations are further set out in section 60CC(3) of the Act, being criteria that the Court must consider in determining the best interests of the children.
As observed by the Court in the decision of Rowan & Hopkins:[12]
The Court’s duty is to deliver individual justice, for the child affected, in every case.[13]
[12] [2022] FedCFamC2F 214 (Brown J).
[13] Ibid [66].
In undertaking an enquiry regarding the best interests of children, the Court is to consider that the children are to have the benefit of both of their parents having a meaningful involvement in their lives.[14]
[14] Family Law Act 1975 (Cth) s 60B(1)(a).
Section 60B(2)(c) of the Act provides that an underlying objective of the Act is to ensure that parents jointly share duties and responsibilities concerning the care, welfare and development of their children. Subject to any prevailing counter indication, the law encourages parents to share responsibilities and to make major long-term decisions for the benefit of their children.
A decision to change a child’s living arrangements to an extent that it makes it significantly more difficult for a child to spend time with a parent is at odds with the legislative preference for parties to reach agreement about major long-term decisions.
As has been observed:
…cases involving the actual or potential relocation of child far away from one of their parents are particularly difficult for the Court involving, as they do, competing legal principles relating to freedom of movement, and the entitlement of children to have a beneficial level of relationship with not just one but both of their parents.[15]
[15] Rowan & Hopkins [2022] FedCFamC2F 214 (Brown J), [72].
Relocation cases can have far reaching implications for children who are unable to sustain relationships with parents over distance. In addition, a relocation case permitted before all of the evidence is tested can detrimentally impact on any application of the other parent who aspires to be an involved parent in the lives of their children. For those reasons, the Full Court of the Family Court has indicated that it is preferrable for relocation cases to not be determined against a background of recent development, particularly if that recent development has been created by the actions of one parent alone.[16]
[16] C & S [1998] FamCA 66.
Whilst reference was made in submissions by counsel for the father to the decision of Morgan & Miles,[17] and the often recited paragraph stated by Justice Boland in that decision, I bear in mind that the Full Court in the decision of Beaton & Beaton[18] stated that:
...Justice Boland’s decision is not a “guideline” in the sense that it sets a benchmark for determination of similar cases. Further, it is apparent from the multitude of decisions of Judges in interim hearings confirmed on appeal, that the principle issue in relocation cases is not whether the case is “an emergency”. The determination of issues regarding children whether on an interim basis or at a final hearing is by reference to the best interests principle.[19]
[17] [2007] FamCA 1230 (Boland J).
[18] [2020] FamCAFC 297.
[19] Ibid [35].
In this case, the parties have agreed an order for equal shared parental responsibility notwithstanding the very serious allegations of family violence in this matter. Section 61DA(2)(b) of the Act provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence.
In circumstances, however, where the parties are represented by experienced legal practitioners and where the Independent Children’s Lawyer does not oppose an order being made in those terms, the Court will proceed to make orders for equal shared parental responsibility as proposed by the parties.
In following the pathway as set out by the Full Court in Goode & Goode,[20] I do not consider it appropriate to make an order for shared care of the children on a week about basis at this interim stage. The Independent Children’s Lawyer supports a maintenance of the current time spending between the father and the children which is also an order promoted by the mother.
[20] (2006) 36 FamLR 422.
Notwithstanding the submissions by the father’s counsel to the contrary, I consider time spending in favour of the father on each weekend and for half school holidays to represent substantial and significant time as defined by section 65DAA(4) of the Act.
Whilst the mother promotes time spending on each weekend as a final order, the Court observes that such a proposal would never permit the mother to spend leisure time with the children and could relegate the father to the role of ‘weekend fun parent’. Further, the father’s new work roster will need to be a consideration at Trial given that the father cycles through day and night shift work and would presumable be reliant on Ms L for assistance in caring for the children should this employment continue. Although the proposed arrangement is far from perfect, it is workable in the intervening period pending Trial.
CONCLUSION
On an interim basis, the Court proposes to continue the status quo ante which has been in place for a number of years. The mother, however, is to ensure that the children return to reside in the metropolitan area of Adelaide pending Trial.
The Court observes that this is a difficult and challenging case and it is impossible to craft a result which will be satisfactory to both parties. The father seeks shared care of the children. The mother seeks to remain living in Town J with Mr O.
The case brings into stark focus competing issues regarding a parent’s desire to be closely involved in the lives of their children on the one hand and freedom of movement on the other.
The Court accepts, however, that the mother’s unilateral decision to relocate the children’s primary residence and to change the children’s schools in the face of a stated opposition by the father cannot be condoned. The evidence of the parties’ competing proposals should be tested at Trial.
Whilst I accept it unlikely that the father would have consented to the mother’s desire to move to Town J with the children, there were other options available to the mother prior to her unilaterally moving with the children to a destination in regional South Australia.
The Court will, however, extend the time permissible for the mother to relocate back to Adelaide with the children. Both the father and the Independent Children’s Lawyer sought orders that the children return to Adelaide for the commencement of Term 4 2023. In circumstances where the father offers no solution to the mother’s future housing and acknowledges that the mother has experienced some difficulty in obtaining a rental property for herself and the children prior to departure, the Court proposes to allow the mother 60 days to find appropriate accommodation close to the children’s school. Whilst the Court acknowledges that this timeframe will result in a change of schools mid-term, this did not appear to trouble the mother when she relocated to Town J noting the submission made by the Independent Children’s Lawyer that X had commenced at the Town J School in August 2023 being over two weeks into Term 3 2023.
The Court proposes to direct that the parties attend a Family Dispute Resolution Conference following the publication of the Child Impact Report, the appointment of which is scheduled for 26 October 2023. The Court proposes to adjourn the matter for further consideration following the Christmas school holidays to allow matters to settle down and will address the future pathway of this matter following the Family Dispute Resolution Conference.
On the question of Christmas Day time spending for 2023, the father is to spend time with the children from the last day of school term until the second Sunday thereafter. The father will therefore have the children for an uninterrupted block in the period leading up to Christmas Day. I propose on this occasion to order that the children be returned to the mother at 9:00am on Christmas Eve and remain with her until 1:00pm Christmas Day. The children will then spend time with the father from 1:00pm of Christmas Day to 6:00pm on Boxing Day. The Christmas arrangements should be reversed for the following year. I decline, however, to make an order for the 2024 Christmas period in circumstances where the matter is likely to reach final hearing before the relevant date.
For the above reasons, the Court makes the orders as set out at the commencement of this Judgment.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 25 September 2023
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