HANNAN & HEPWORTH
[2018] FCCA 1899
•27 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HANNAN & HEPWORTH | [2018] FCCA 1899 |
| Catchwords: FAMILY LAW – Parenting – interim relocation – young children. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA |
| Cases cited: Goode v Goode (2007) 36 FamLR 422 |
| Applicant: | MS HANNAN |
| Respondent: | MR HEPWORTH |
| File Number: | PAC 918 of 2018 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 8 June 2018 |
| Date of Last Submission: | 8 June 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 27 July 2018 |
REPRESENTATION
| Appearing for the Applicant: | Ms Rysiok |
| Solicitors for the Applicant: | AS Family Lawyers |
| Counsel for the Respondent: | Mr Baston |
| Solicitors for the Respondent: | Ogge Law |
PENDING FURTHER ORDER:
The mother shall have sole parental responsibility for the children [X] born 2014 and [Y] born 2016.
The mother shall forthwith notify the father of:
(a)Any medical problems or illnesses suffered by the children;
(b)Any medication which has been prescribed for the children; and
(c)All other matters relevant to the children’s welfare.
Notwithstanding any other order, the mother is restrained from taking the child [X] to any counsellor, psychologist or mental health practitioner except with the father’s consent or further order of the Court.
The children shall live with the mother.
If the mother remains living in the Sydney metropolitan area, then the children shall spend time with the father on the first weekend each month from 10am to 6pm on Saturday and Sunday, with such time to occur in the Sydney metropolitan area and at all other times as agreed to between the parents in writing.
If the mother relocates back to the Brisbane metropolitan area, then the children shall spend time with the father as follows:
(a)Each Tuesday and Thursday from 5pm to 7pm; and
(b)Each alternate weekend from 5pm on Friday to 5pm on Sunday commencing on the first weekend after the making of these orders.
Except as provided for in Orders 5 and 6 the mother is otherwise restrained from relocating the children’s residence.
The parents are both restrained from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children or permitting or allowing any third party from doing so.
List the matter for directions at 11.30am on 18 October 2018.
IT IS NOTED that publication of this judgment under the pseudonym Hannan & Hepworth is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 918 of 2018
| MS HANNAN |
Applicant
And
| MR HEPWORTH |
Respondent
REASONS FOR JUDGMENT
Introduction
These are interim parenting proceedings relating to the children [X] born 2014 and [Y] born 2016. The parties to the proceedings are the Applicant mother Ms Hannan and the Respondent father Mr Hepworth.
The mother seeks orders that:
a)The mother have sole parental responsibility for the children;
b)The children live with the mother;
c)The children be permitted to relocate to Sydney;
d)Each parent refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children or from allowing any other person from doing so; and
e)That the children spend time with the father in accordance with the recommendations made by the children’s mental health practitioners.
The father seeks orders that:
a)The mother return the children to live in Queensland;
b)The mother be prohibited from again removing the children from Queensland;
c)A recovery order issue should the mother again remove the children;
d)A warrant issue to arrest the mother;
e)The mother pay the costs of and incidental to the recovery application;
f)A Family Report be prepared;
g)The parties be restrained from removing the children from Australia without the written consent of the other parent;
h)In the event that the mother continues to live in Sydney that the children reside with the father in Queensland and spend time with the mother as agreed; and
i)In the event that the mother lives on the Region, that the children live with the mother and spend each Friday from 5pm to Sunday at 5pm with the father with changeovers to take place outside Location.
The Law
The Court, in determining this application, has to consider what orders are in the children’s best interests. In determining what is in the children’s best interest, the Court must consider the matters set out in section 60CC of the Family Law Act1975. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interest of the children. In applying the primary considerations, the Court is to give greater weight to the considerations set out in paragraph 60CC(2)(b). In addition, in considering what order to make, the Court must, to the extent that it is possible to do so, ensure that the order does not expose a person to an unacceptable risk of family violence. The Act does not mandate the discussion of considerations under section 60CC in any particular order, and it is well recognised that additional considerations may outweigh the primary considerations.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests. In the interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the children’s best interest and reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents.
Section 65DAA is expressed in imperative terms. The Full Court in Goode & Goode[1] mandated that this legislative approach must be followed in all parenting cases and, in particular, set out the procedural steps to be followed on an interim application noting that in interim proceedings, there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.
[1] (2007) 36 FamLR 422, (2006) FLC 93-286
In Marvel & Marvel[2], the Full Court made the following obiter comments.
As has frequently been emphasised, interim parenting proceedings and orders made as a consequence are a necessary, but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult, and often, for very good reason, a conservative approach or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires or thinks to be in the children’s best interests. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at final hearing…
[2] [2010] FamCAFC 101 at [120]
In Keats & Keats[3], the Full Court held in respect of the conduct of interim proceedings:
…that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on the children in the event that a controversial assertion is acted upon or rejected.
[3] [2016] FamCAFC 156 at [9]
Relevantly to the current application, in Morgan & Miles[4], Boland J made a number of very important and appropriate, to this instance, both obiter comments and matters which were subject of the ratio of that case in relation to what are frequently termed interim relocation applications. Starting at paragraph 55, her Honour stated as follows:
On one reading of the submissions, it assumes a “right” to relocate. There is nothing in the legislation which provides that a parent who has an existing order which provides that a 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 interest). While such a move may, after the exploring of 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 structure exercise of discretion required by the legislature. 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 interest including time to be spent with the other parent be inappropriately fettered by a move which has already occurred.
[4] (2007) FLC93-343. Subsequently approved in a number of full court authorities including Malcolm & Munroe (2011) FLC93-460
Next at paragraph 66, her Honour noted as follows:
The effect of an order which provides for shared parental responsibility is to require parents to jointly make a decision about a major long-term issue for the child. Major long-term issues include matters such as the child’s education, religious and cultural upbringing, health and name and “changes to the child’s living arrangements that make it significantly more difficult for a child to spend time with a parent” (s.4(1)).(Emphasis added).
Her Honour further noted at paragraph 72 that:
There can be no dispute that in determining a case where one party which research indicates is invariably the mother,… wishes to relocate a court in making a parenting order generally about who the child will live with or with whom the child shall spend time with. The Act does not treat “relocation” cases as a special category of parenting orders. In that respect the amendments to the Act which were made at that time has affected no change to the law.
At paragraph 73, her Honour said:
It is also undisputed that in determining a parenting case where one parent wishes to relocate, the child’s best interests remain the paramount, but not [the] sole consideration.
At paragraph 74, her Honour went on to say:
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 to obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
At paragraph 75, her Honour said:
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 the proposed living arrangements for a child would make it significantly more difficult for that child to spend time with the “left behind” parent.
At paragraph 79, her Honour set out the matters which the Court is to consider in circumstances where the parent with whom the children live proposes to relocate. In those circumstances, her Honour suggested that the Court must be satisfied that 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 an international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects of 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 careful 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 proposal of the parties and 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 spend time with and communicate with the other parent,
that the child live with the non-relocating parent and spend time with and communicate with the other parent,
that the child lives equally with the parents in the existing locale and lives with one parent and spend substantial and significant time with the other parent in the existing locale,
the non-relocating parent move to the venue chosen by the relocating parent and the child live 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 laws should provide general guidance.
Her Honour then went on to say in paragraph 87 that:
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.
Her Honour then went on to say at paragraph 88:
It appears to me that the very the very difficult issues in cases involving a relocation which difficulties are highlighted in the cases and referred to by the Family Law Counsel in its 2006 report Relocation: a report to the Attorney General prepared by the Family Law Counsel, 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 types of cases in which the child’s present stability may be extremely relevant on an interim basis.
Her Honour further went on to say at paragraph 91 that:
It is not the distance, per se, that should be the determinative criteria. In many cases what is relevant is the consequences of the move or the proposed move. The issues to be determined may be quite different for example, for an infant or a toddler … older children, or for economically impoverished families... 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 a relocating parent, and spending time with the other parent where, with alternative arrangements, the child’s relationship with a non relocating parent can be maintained and fostered.
Relevant Considerations
By its very nature, an interim hearing is a curtailed hearing. Evidence is limited, and the matter is decided on the papers. The chronology in this matter, which is referred to below, is important.
The father was born on 1966.
The mother was born on 1982.
The parties commenced a relationship in 2009 in (country omitted) and marry.
The mother moved to Australia under a spouse visa in 2009 and lived with the father and his family in a number of rental properties in Queensland.
The child [X] was born on 2014.
In approximately July 2014 the parties separated and the mother and child [X] moved to Sydney to stay with the maternal family.
In November 2014 the mother returned to Queensland with the child. The mother says that upon her return the father forced her to rent a hotel room for one week before telling the mother that he did not want to reconcile. The mother then sought rental accommodation for herself and the child. The mother and child continued to live separately from the father until approximately May 2015.
The parties resumed their relationship in May 2015.
The mother became an Australian citizen in 2016.
The parties’ second child [Y] was born on 2016.
The mother’s evidence of the parties’ relationship is one of violence and fear perpetrated by the father towards the mother. As early on as 2009 shortly after the parties moved to Australia, the mother says that the father was verbally abusive towards her calling her names such as ‘whore’, ‘slut’, ‘a peasant and a daughter from a slut family’, ‘devil’. The mother continues to say that the father’s family also contributed to derogatory comments aimed at the mother such as “It’s not enough what he does for you?”, “You’re nothing without our brother” and “You’re the devil”.
In June 2014 the mother says the father was physically and emotionally abusive towards her and that he would pinch her body, punch her in the head, hit her with his hand across the face, hit her in the back of the head, choke her until she could not breathe, twist her hands behind her back and on one occasion put the mother in headlock and sprayed Mortein into her left eye.
The mother did not report these instances to police or to any doctor as she was fearful and could only speak minimal English.
The mother’s evidence is that the violence continued when the parties reconciled. When the mother was approximately six months pregnant with the parties’ second child the father dragged the mother by her hands and with his hand behind her head, tried to force her head into the toilet bowl and yelled at the mother “This is your level, this is your place”. The mother says the eldest child saw this and the mother was screaming, crying and shaking.
The mother gives evidence that the father was controlling of her and the children during their relationship. She says that he would refuse to give the mother money, refuse to let her see a doctor or have her own friends and that he would demand money from her.
The mother also states that the father had little involvement with the children during their cohabitation. She says that the father did not shower the eldest child for three days whilst the mother was in hospital following the birth of their second child and that he did not care for the children. He was unable and unwilling to settle the children and would often call them names such as “dog” and “donkey”.
The mother says that she felt like a prisoner in her own home and that the father would regularly point out stories on the news where husbands had murdered their wives and would laugh in an attempt to intimidate the mother and cause her to feel frightened.
On 17 February 2018 the mother was assaulted by the father and his sisters Ms M and Ms F by pinching, punching and hitting the mother on the head. The father also choked the mother. During this assault the mother screamed for help and called the police. A protection order was consented to by the father, such order being made without any admission.
The mother seeks to remain with the children in Sydney due to the serious family violence perpetrated against her and the children by the father over a significant period of time.
The mother says that she has no supports available to her in Queensland and that she fled such a violent and fearful relationship to Sydney where she has the support of family and services for her and the children to help them deal with the effects of living and experiencing such family violence. The mother is fearful of returning to Queensland where the father and the paternal family, who were also violent and belittling of the mother, live and will be able to continue to be coercive and controlling of the mother and the children.
Since moving to Sydney with the children the mother has sought mental health treatment for herself and for the child [X] who the mother says has been experiencing night terrors and re-enacting violent behaviours previously witnessed by the father. [X] has been referred to a psychologist.
The mother has also established social interaction for the children and herself since moving to Sydney and has sought independent housing.
The mother has been diagnosed with “Post Traumatic Stress Disorder, with panic and depression” by Ms M, Psychologist whose report, date unknown, reports as follows:
It is not in the best interests of Ms Hannan or her children [X] age 3, and [Y] age 1 to be sent back to Queensland in order for Mr Hepworth to have access visits even if supervised for the following reasons. Ms Hannan and her children are already traumatized by the domestic violence her husband Mr Hepworth has perpetrated on her and the children.
The following information is an example of the domestic violence Ms Hannan and her children had to endure as reported by Ms Hannan during the assessment.
Mr Hepworth got Ms Hannan’s head and put it on top of the toilet bowel and in the toilet itself while stating “this is where you belong”. Ms Hannan was 6 months pregnant with [Y] at this time. [X] aged 2 at the time witnessed her mother Ms Hannan being dragged by her father to the toilet.
Mr Hepworth had sprayed mortein (bug spray) while having his wife Ms Hannan in a headlock, he directly sprayed the can of mortein that kills spiders into her left eye from a close distance while both children were watching. After this incident Ms Hannan has not been able to experience taste or smell.
Mr Hepworth’s violence had increased over the 9 years they were together to the point that Mr Hepworth accused Ms Hannan of being a devil and grabbed her neck and pushed her head from behind onto a storage box, pushing her face inside the cusion on top of the storage box in an attempt to suffocate her. Ms Hannan parents had heard the screams over the mobile phone witnessing what was happening. Their daughter [X][sic] aged 3 at the time had witnessed this also.
…
Ms M’s report became an Exhibit in the interim proceedings.
Not surprisingly with family law proceedings much of the mother’s evidence is refuted by the father. He denies ever calling the children derogatory names such as “dog” or “donkey” and says that the mother would call the children “dogs like your father” when she was angry or “browsing her mobile phone”.
The father says the mother viewed the children as a “nuisance to her life”.
He says that when he would return home from work the two children would greet him and that he would spend most of the evening playing, singing, dancing and reading to the children and that he would put them to bed of an evening.
The father says in his affidavit that “my family and I were the only support for Ms Hannan when she had [Y]. None of her family members in Sydney visited us…”
Such a statement seems to support the mother’s contention of lack of family support in Brisbane.
The father’s affidavit is unhelpfully drafted in a pleading format, however it is clear from reading his affidavit that he either does not agree or does not recall the events outlined in the mother’s affidavit.
The father says that he and the mother attended family counselling when the mother and eldest child returned to Queensland following their initial separation with a psychologist.
The father denies restricting the mother’s access to doctors and social circles. He says that if she did so it was at her own doing as he was at work.
The father says he has the financial capacity and good will to house the mother and children should they return to live in Queensland.
The father is concerned that the mother will “disappear with the children and return to (country omitted) or travel elsewhere” which is the basis for the order sought by him restricting international travel.
The father says that the mother has “two distant cousins from her mother side who are married and live in Brisbane with their children” and that the mother has “established network of friends on the Region in the (nationality omitted) communities who have supported her since she move from (country omitted)”.
The father has, since the mother’s relocation to Sydney with the children, registered with Suburb A Contact Centre for supervised visits with the children to commence as soon as possible, however, to date the father says that he has not received notification from the mother’s solicitors that she has registered with that service.
Determination
This is an interim application where the proceedings are in the very early stages. The protection of children from harm is in light of the very serious allegations which the mother makes in her case, a significant and overriding concern for the Court in these particular circumstances, and consistently so with the Court’s obligations pursuant to s60CC(2).
While it is ultimately a risk assessment exercise, in the face of evidence which is contested, that risk assessment exercise is guided by the pronouncements of the Full Court. A cautious or conservative approach is at times appropriate. Ultimately, any order must be one which the Court holds is in the children’s best interest.
Even if the risks for the children per se can be ameliorated by the protection order, by the father spending limited time with them, and by restraints preventing the father or his family from having any contact with the mother except as may be consequential upon an order for the children to spend time with the father, what is difficult to ameliorate is the psychological risk to the mother, who is the children’s primary carer, and whose ability to function and care for the children is of importance.
The evidence, whilst untested, strongly suggests that the mother will have significant difficulties in coping if she was to return to live in Queensland. On all of the evidence, she appears to have no close family supports and at best limited social supports[5] in Brisbane, and while it is correct that the city is a large metropolitan with similar external support networks as one might find in Sydney, including medical and psychological services, child care services and social service, the mother has limited English and has no family support in the area. She does have family support in Sydney.
[5] Although the father does depose that she has established a network of friends in the (nationality omitted) communities who have supported her since her move from (country omitted)
The children are still very young, and while the Court is conscious that their relationship with the father may be affected by a prolonged absence of him from their lives, the risk to them of not having their primary carer emotionally available to them is in the Court’s assessment the higher and more serious risk. They will still have the opportunity of spending time with the father, albeit it will be in limited circumstances.
Once there has been the opportunity of obtaining a relevant expert or other report which will assist the Court in its determination and a testing of the evidence, the Court will be in a much better position to properly assess the children’s best interests. At present, all the Court can do is weigh up the competing proposals with the likelihood that if the risks identified were realised, what the impact on these vulnerable children would be. Vulnerable because of their age, limited ability to communicate and protect themselves.
The facts which seem to be agreed between the parties are very few, and in one sense significantly contradict the mother’s assertion of economic control. For example, the mother had at the time of her unilateral relocation $19,000 in a bank account in her name. This flies in the face of her assertion that the father did not allow her any economic autonomy and that he had control of all of the parties’ money during the relationship. $19,000 is not an insignificant amount for a person who does not earn an income to hold in a bank account.
The other concerns with the veracity of the mother’s allegations as to the serious nature of the family violence are as follows:
a)She lived in separate rental accommodation with the children for a number of months in Queensland, which per se speaks against the serious violence/control she alleges[6];
b)Prior to this she had moved with the children to New South Wales and lived with her family, this was at a time when she said there had been significant violence in the relationship already;
c)She does not say that her family (or the father’s family) forced her to go back. She does not say that she did not tell her family, for fear or shame, of the alleged violence perpetrated against her.
d)She knew to and was able to call the police on 17 February 2018. She also called her brother;
e)Her complaint to the police was made through her brother who was on speaker phone;
f)The mother’s report to various counsellors/doctors have only ever been through family members, some of them unidentified.
[6] Albeit in this context the mother asserts that the father would visit her home every day
On the other hand, the involvement of the father’s sisters in the incident which led to the protection order speaks volumes in support of the allegations by the mother. Even at its highest in terms of the uncontradicted evidence it is telling of at least some level of influence and control by the father’s family over the mother.
There are also concerns with the veracity of the father’s evidence. For example, the father deposes that he was not present during the argument between his sister and mother and his wife on 17 February 2018. That is, he says he left to go out for a coffee while his sister and mother remained behind. At the same time, he annexes to his affidavit the application for the protection order which sets out the basis for the application for the order. The father does not in his affidavit make any remark about the police incorrectly recording what occurred on the day. In particular, the police record that:
a)Ms M, the husband’s sister, confirmed that the argument was between the mother, the father, the father’s sisters and the father’s mother;
b)Ms M, the husband’s sister, confirmed that her sister Ms F had pushed Ms Hannan, and that her mother had pushed Ms Hannan and tried to cover her mouth to stop her from calling out for help, with the justification that it was a private matter; and
c)The father confirmed that he and the mother had been arguing about the mother spending money.
There is no evidence before the Court from any of the extended family members of either the mother or the father.
The Court of course has not had the benefit of any of the evidence being tested, so it is with those difficulties in the evidence that the Court must assess the competing allegations and the risks to the children.
In terms of a risk to the children arising as a result of the allegations of violence made by the mother, the police opinion at the time of the making of the protection order was that the children were not at risk from the father, but rather that the risk to the children arose as a result of the exposure to family violence between the parents. Notably, the following forms part of the police record:
It is the wish of both Mr Hepworth and Ms Hannan that they both share in the care and responsibility of raising their two daughters.[7]
[7] Exhibit 2 under heading “Children of the aggrieved or children who usually live with the aggrieved”
Of course, the police also formed the opinion (the factual basis of which has not herein been established) that they believed it was necessary and desirable for a protection order to prevent the ongoing controlling and aggressive behaviour, swearing and insults from the father towards and in relation to the mother. The police were sufficiently satisfied that the protection order minimised the risks to the mother of such further behaviour by the father. Interestingly, the police officer applying for the order also formed the view that “Ms Hannan has been exposed to this domestic violence from Mr Hepworth over the past 10 years and the effects of this behaviour have eroded her confidence and ability to be a strong mother and role model to their two young girls.” The Court has been unable to glean from the facts alleged in the grounds for protection order the basis of such an opinion, or indeed the expertise of the police officer to give such an opinion.
The Court does not find that the children are at an unacceptable risk of harm if they are to spend time with the father, other than on a supervised basis. While the parents’ evidence about the father’s capacity to look after the children is conflicting, in the Court’s assessments a limited number of hours spent with the children during day time one weekend a month has inherent protective factors of a sufficient nature as to alleviate any risks identified by the mother’s evidence of the father’s lack of parenting capacity. Furthermore, the mother makes no allegations of physical violence perpetrated by the father on the children.
Both parents make allegations of the other in respect of inappropriate name calling of the children or similar. Such evidence is yet to be tested.
It appears clear though, that the mother has to date not been willing to foster or encourage a relationship between the children and the father. Since her move to New South Wales, the father has attempted to spend time with the children on a supervised basis, which it appears, the mother has either rejected or not followed through with. In any event, the children have not spent any time with the father since February. In their young lives this is a significant amount of time.
While the mother alleges that the older child has suffered trauma and has exhibited certain behaviours as a result of witnessing family violence, the only evidence from an independent third party which is available, seems to suggest that the child is not exhibiting any such behaviours presently (or at least none were observed during the assessment).
Apart from the allegations of violence, it is the tyranny of distance which is the biggest inhibitor to the children being able to exercise their right[8] to know and be cared for by both of their parents, and their right to spend time on a regular basis and communicate with both of their parents.
[8] Except when contrary to the children’s best interest – see generally s60B in respect of the relevant principles and objects
The Court is faced with an application that the mother in essence be directed to return to live in Queensland with the children. She does not have any accommodation to return to. The father has given evidence that he is in a position to find a rental property for the mother and to pay the rent associated. This would seem to indicate that the father has funds available to him which would enable him to travel and stay in Sydney on a periodical basis in order to spend time with the children, at least in the interim until such time as the Court determines this matter on a final basis.
Furthermore, the mother has commenced attending TAFE in Sydney and the children have been enrolled in day care. There is now a new routine for them, and one that they did not have when they lived in Brisbane. To require the mother to return with the children to Brisbane in these circumstances would ultimately mean a further disruption to the children’s lives at least in the short term. It may be that ultimately an order is made which is different from the interim orders, and that by that stage the status quo will be of even longer duration. However, the status quo is not of itself a relevant factor.
The Court is not satisfied, in weighing up the competing proposals that it is in these children’s best interest that the mother be directed to reside with the children in Brisbane. While such an order would allow for significant and substantial time between the children and the father, the risks which have been articulated by the mother in these proceedings speak against such significant and substantial time in any event. The allegations of violence are very serious.
Furthermore, and in all of the circumstances, the Court is also satisfied that it is not appropriate for the presumption of equal shared parental responsibility to be applied given the serious allegations and high conflict between the parties. Therefore, an order for the mother to have sole parental responsibility will be made.
Conclusion
For all of these reasons orders as set out at the forefront of these Reasons are made.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 27 July 2018
Key Legal Topics
Areas of Law
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Civil Procedure
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Commercial Law
Legal Concepts
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Abuse of Process
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Appeal
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Costs
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Res Judicata
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Stay of Proceedings
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