Hanratty & Hanratty
[2023] FedCFamC2F 1467
•8 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hanratty & Hanratty [2023] FedCFamC2F 1467
File number(s): DGC 2219 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 8 September 2023 Catchwords: FAMILY LAW – Review of Registrar’s decision to refuse urgent consideration of interim parenting – application allowed
FAMILY LAW – interim parenting hearing – orders that mother return children to Suburb B– recovery order to lie in court – orders that children live with father on condition that he provide evidence in respect of his housing security – interim orders by consent that the parents have equal shared parental responsibility for the children
Legislation: Family Law Act 1975 (Cth) ss4AB, 60CC, 60CC(2A), 60CC(3)(g), 60CC(3)(h), 60CC(3)(l), 60CC(3)(m), 68B, 69ZW Cases cited: Deiter & Deiter [2011] FamCAFC 82
Marvel & Marvel [2010] FamCAFC 10
Patterson & Dillard [2022] FedCFamC2F 465
Salah & Salah [2016] FamCAFC 100
Sterry & Sterry [2017] FamCAFC 226
Stringer & Nissen (No 2) [2019] FamCAFC 185
Division: Division 2 Family Law Number of paragraphs: 60 Date of hearing: 5 September 2023 Place: Hobart Solicitor for the Applicant: Ms LaGreca, Pentana Stanton Lawyers Counsel for the Respondent: Ms Johnson Solicitor for the Respondent: Loddon Campaspe Community Legal Centre ORDERS
DGC 2219 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HANRATTY
Applicant
AND: MS HANRATTY
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
8 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The Father’s application for review filed 19 July 2023 of the refusal of a Judicial Registrar to hear his interim application urgently is allowed.
2.All times be abridged and any formal requirements of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) be dispensed with to allow the Father’s interim Application for Recovery of the children to be heard on an urgent basis on 5 September 2023.
3.On condition that within 10 days of the date of these orders the Father files and serves an affidavit annexing written confirmation from the landlord or landlord’s agent that he is not to be evicted from the property at C Street, Suburb B, Victoria; by 2 October 2023, the Mother return the children X, born 2016 and Y, born 2020 (collectively, ‘the children’) to reside in Suburb B, Victoria.
4.By consent, the children live with the parties in Suburb B, Victoria on a week about basis with changeover to occur each Sunday at 1:00pm.
5.By consent, the children communicate with the non-resident parent by telephone or video call using by Facetime or AppClose each Wednesday from 5:00pm to 5:30pm, with the non-resident parent to initiate the call and the resident parent to ensure the children are available.
6.By consent, upon the Mother providing written evidence to the Father of the bond paid to secure rental accommodation in Suburb B, Victoria, the Father pay 50 per cent of such bond.
7.Within 10 days of the date of these Orders, the Father do all things reasonably practicable to ensure that the Mother’s name is removed from the lease of the property at C Street, Suburb B, and must notify the mother of the outcome of his endeavour.
8.An order lie in court under Section 67Q of the Family Law Act 1975, for the Marshal of the Family Court of Australia, the Australian Federal Police and all officers of the police forces of each State and Territory of the Commonwealth of Australia be authorised and directed to recover and deliver the children to the Father (subject to satisfaction of the condition in Order 3 of these Orders) to live in the Suburb B region and for that purpose to stop and search any vehicle, vessel or aircraft and search any premises or place in which there is, at any time, reasonable cause to believe that the children may be found.
9.Should the Mother not comply with Order 3 of these Orders within the time for her compliance with that Order, upon filing of an affidavit evidencing non-compliance, the court will consider making an Order in Chambers to enact Order 8 of these Orders.
10.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children X born 2016 and Y, the Father MR HANRATTY is restrained by injunction from using any form of physical discipline or corporal punishment on the children and must protect them from any other person doing so.
11.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children X born 2016 and Y, the Father MR HANRATTY is restrained by injunction from using cannabis when the children are in his care and must ensure they are removed from any place where a person is using cannabis.
BY CONSENT, THE COURT ORDERS THAT:
12.The Mother and Father have equal shared parental responsibility the children.
13.The parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They will inform the other parent about the decision to be made; and
(b)They will consult with each other on terms that they agree.
14.The parties have equal shared parental responsibility (in consultation with each other) in relation to major long-term issues affecting the children including:
(a)Education;
(b)Health;
(c)Religion; and
(d)Any other significant circumstances affecting the child’s wellbeing.
15.Parties shall continue to communicate via AppClose Parenting Application with respect to day-to-day communication about arrangements for the children and their welfare.
16.The Mother and Father will:
(a)Reply to all communications from the other parent seeking information about the children in a timely way and generally within forty-eight (48) hours;
(b)Keep the other parent informed within forty-eight (48) hours of any change to their residential or postal address, landline, and mobile telephone numbers;
17.Each parent shall keep the other informed of the contact details of any treating medical health care practitioner attending to or treating the children whilst in their care and this order shall be authority to any medical or health care practitioner to release any information to the children as they are lawfully able to provide to either parent.
18.Both parents are entitled to receive at their own request and expense any and all information in relation to the health and welfare of the children including by not limited to details of any illness suffered by the child and treatment required. This Order constitutes an authority to child’s medical practitioners and allied health professionals to provide that information.
19.If the children are prescribed medication or specific treatment which is required to continue into a period when the other parent will be responsible for the child’s care, any medication or materials required for treatment shall be provided to the parent along with details of the prescribed medication dose or treatment required.
20.If the children are in need of treatment at any hospital the party is to notify the other of any details related to the nature of the illness/injury, details of any related medical appointment, the hospital the children’s attending and details of any treating professional as soon as is practicable and the other shall be at liberty to attend at the hospital regardless of time specified herein unless directed not to do so by the treating medical practitioner.
21.Both parents complete the Parenting After Separation Program and provide certificate of completion to the other party upon completion.
22.The parties shall forthwith authorise any childcare, kindergarten or school the children may attend to provide each party with copies of reports, newsletters and announcements of centre/school activities, or otherwise pertaining to the education of the child, or if none have been made available in writing, then the parties shall provide written particulars, which includes by email, of such reports and/or activities to the other party within 3 days of such documents or particulars being received by a party from the school, and the parties shall authorise staff members at any childcare, kindergarten and the school the children may attend, to discuss the child’s progress with the other party.
23.Each parent is entitled to attend childcare, kindergarten and school events.
24.Each parent be at liberty to attend all extra-curricular activities the children engage in including performances, games, concerts, annual events, training sessions, parent teacher, school assemblies and any other significant event related to the child’s attendance at school or at extra-curricular events.
25.Each of the parents, their servants or agents be hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other parent in the presence of the children; and
(b)Discussing the proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, and from permitting any other person to do so.
THE COURT ORDERS THAT:
26.The Chambers Hearing 10 October 2023 is vacated.
27.These proceedings are listed before a judicial registrar for directions on a date to be fixed.
THE COURT NOTES THAT:
A.The Court will settle its oral reasons for judgment in written form and provide a copy to the parties’ practitioners.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
C.Order 27 herein has been amended pursuant to Rule 10.1.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 Taglieri
These parenting proceedings concern two children, X, aged six, and Y, aged two. The Father’s application for review of an order made by a judicial registrar came before me for hearing on 5 September 2023. The parties had agreed that certain interim parenting orders should be made by consent. They were set out in the second part of a minute provided to the Court which I have asked my associated to mark as Exhibit A-1.
There remains dispute about whether the Court ought to have heard the Father’s application for interim recovery orders on an urgent basis at the time of filing. A judicial registrar declined to list the application urgently, and this decision is the subject of the review application.
I allowed the review and gave brief oral reasons for determining that the interim recovery application should be heard urgently. As the practitioner for the father sought that the interim recovery aspect be heard that day I briefly adjourned to consider the material before the Court to determine if there was likely to be sufficient material upon which the Court could proceed to hear the father’s interlocutory application filed on 10 July 2023 and, in particular, whether paragraphs 3 to 8 of the minute of orders sought in Exhibit A-1 should be made.
On resuming the hearing, I observed that the Court had affidavits from each parent and a report from the Department of Families, Fairness and Housing (“DFFH”) before it which appeared to provide a sufficient, though not ideal, volume of information to proceed with the interim recovery hearing. Both counsel agreed that I could read into evidence the material just mentioned and proceed with the interim hearing. They did not seek to persuade me to the contrary.
I have considered:
·The affidavit of the Father filed 10 July 2023;
·The affidavit of the Mother filed 1 September 2023; and
·The section 69ZW report from the DFFH filed 19 July 2023.
Each party’s legal representative also made fulsome submissions about the relevant considerations in deciding the best interests of the children.
These reasons are delivered orally and in short form, pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”), as the judgment concerns interim parenting orders.
There was no particular dispute about the decision-making pathway that the Court must follow. I have approached the task of evaluating the parties’ competing proposals in the context of the considerations in s 60CC of the Act. This includes assessing the risks alleged by the Mother, considering the likelihood of harm, abuse or neglect and identifying the severity of the impacts of any adverse events or risks likely or possible.
As the ultimate issue is whether it is in the children’s best interests for them to remain residing in Town D with the mother or return to Suburb B to reside with the father if the mother does not also return, I will apply the principles for determining such issues according to the summary I gave in Patterson & Dillard [2022] FedCFamC2F 465, which apply equally in interim proceedings.
I am mindful of the need to prioritise concerns about the likelihood of harm, abuse or neglect of the children above the maintenance and promotion of a meaningful relationship with a parent.[1] However, as will become apparent from the reasons that follow, the need to prioritise does not arise in this case on the material before the Court at this juncture.
[1] Section 60CC(2A) of the Act.
The evidence before the Court demonstrated consensus or lack of challenge as to the following facts, and I find accordingly:
·The parties cohabited and were in a relationship between 2010 and around late May/early June 2023. They were married in 2022;
·There are two children of the relationship: X, born 2016, and Y, born 2020.
·Separation took effect because on 27 May 2023 the Mother left the family home stating she was going to visit her father with the children, but did not then return;
·The Mother contacted the Father on the night of 27 May 2023 when she communicated that she was staying with a friend;
·The Mother then unenrolled X from his regular school a few days later without notice to or consultation with the Father.
·Since the Mother left the home with the children, the Father has only had video calls and has visited the children on one weekend, being 18 to 20 August 2023;
·The Father took legal advice promptly in July 2023;
·By email dated 21 July 2023, the Mother had notice of the Father’s intended application and was then served with the proceedings on 14 August 2023.
·The Mother filed her responding material on 1 September 2023;
·Until 23 May 2023, the children had lived with both parents in a four-bedroom house their entire lives, and their schooling, friends, social activities were in Suburb B, a suburb of Melbourne.
·The property in which the family resided in Suburb B for four years was also occupied by the children’s paternal uncle, paternal aunt, paternal aunt’s partner and their child;
·The landlord of the Suburb B property has commenced proceedings in Victorian Civil Appeals Tribunal (“VCAT”) for rental arrears, but there is dispute as to whether there is a risk of eviction;
·The Mother is living in a three-bedroom house owned by a friend’s parents and is now occupied by the Mother, the two children, the friend Ms E, and her children.
·The Father has been and is studying to obtain a qualification;
·The Mother has qualifications in the service industry, but has not been in employment due to being involved in caring for the children.
There were also agreed facts that the distance between Town D and Suburb B involves a three‑hour drive one way and that the information contained in the DFFH report about a safety plan around a person on the sex offender register was not a member of the paternal family.
Based on all of the above facts concerning the parties’ living arrangements, it can be inferred that the children have had a meaningful relationship with each parent. There is insufficient evidence to make more specific findings about the depth or quality of each party’s relationship with the children save that there is evidence which tends to support the Mother’s evidence that she has been the primary carer of the children because of their age and also the Father’s studies.
In addition, the Father attests to the children missing him and wanting to come home.[2] This was not disputed by the Mother when she filed her responding affidavit.
[2] Father’s affidavit at [17].
At its highest, the Mother’s untested affidavit material conveys family violence by the father involving coercive and controlling behaviours.[3] This appears to be relied on to suggest that the children have been exposed to emotional harm however was not relied upon to rebut the presumption of equal shared parental responsibility as I was told by the parties’ legal representatives that they consented to the Court making an order for equal shared parental responsibility.
[3] Mother’s affidavit at [37] to [42].
The Mother alleged physical harm to the children at the hands of the paternal uncle involving physical discipline or corporal punishment, which the father condoned.[4] But the DFFH report does not disclose notifications about this, and the mother appears not to have made notifications to either police or Child Protection Services as they have mandatory reporting obligations to one another. I infer this from the content of the DFFH report. This, in my view, tends to inform the potential lack of substance or seriousness of the claims.
[4] Mother’s affidavit at [38].
At its highest and collectively, the Mother’s evidence summarised in her affidavit at [15], if it is accepted, does not appear to reflect serious or persistent exposure of physical or emotional harm to a level that usually is understood in this Court to deprive a parent from spending significant time with a child.
Indeed, the Mother consents to the Father regularly spending unsupervised time with the children, and it is the practical difficulty, which she refers to, as limiting the frequency of visits. This too informs as to the nature of family violence allegations particularly in the light of the Mother arranging for the Father to stay at Ms E’s property for the visit in August 2023.
More specifically, it is difficult at this stage to accept, at a prima facie level, the allegations of financial control because the Mother’s own evidence is that the parties had separate bank accounts and that she still has access to a utilities account and that she was responsible for making payments of the same.[5]
[5] Mother’s affidavit at [37(a)].
The evidence of the Mother overall conveys a picture of grievance and annoyance about how the Father spent money and his contribution to parenting, but at this stage it does not seem to rise to the level of family violence as defined in s 4AB of the Act.
The Mother’s allegations about the Father controlling her movements and manipulating her is coloured by her subjective perception, and there may be innocent explanations for a partner wanting to know where the other is particularly when they are in a family unit and have joint parenting responsibilities.
The allegations in the mother’s affidavit at [37(f)] appear to reflect disagreements about parenting styles.
The only evidence about the views of the children is set out in the Father’s affidavit at [17] and [23]. It is not difficult to envisage that the children would be distressed and have difficulty adjusting to their relocation in the manner it occurred and also at experiencing minimal time with the Father relative to that which they spent with him pre-separation.
It is significant, in my view, that there is evidence of adverse impact on the children due to separation with the Father and the children’s usual home environment.[6] This, together with that stated at [17] of these reasons, raises concerns about emotional harm to the children.
[6] As contained in the DFFH report.
I give some weight to the evidence of the Father about the children’s emotional distress. It is notable that the senior Child Protection practitioner from DFFH states:
Given the recent parental separation and the children’s disrupted attachment with the usual home-school and father, it is likely that there has been some emotional impact of harm on the children.
The practitioner also states that further impacts of harm are likely to be mitigated by positive engagement with school, playgroup, friend and family supports and that the Court is best placed to manage residency issues. I observe that there appears to have been satisfactory stability in all these areas before the mother relocated. I do not ignore the statements selectively emphasised by the Mother in her affidavit at [48], but this speaks to the likely ability of the children to cope with another change in school and sits comfortably with the Father’s affidavit at [20].
It would appear that the children may have equally close and meaningful relationships with the maternal and paternal extended families based on the untested evidence before the Court, although the fact that the children lived daily with the paternal family for four years presumably afforded a stronger connection with them as the maternal extended family had lived about three hours away.
While the Mother attests to family supports that she has in Town D compared to Suburb B, this speaks to the question of her relationships and supports with her extended family, not those of the children or not the need for those supports by the children. There is no specific evidence about the nature of the relationship between the children and the persons referred to in the Mother’s affidavit at [24]. I give slightly more weight in respect of this consideration to the Father’s proposal. By that, I mean the consideration of the nature and quality of the relationship with the extended families.
Noting the unchallenged evidence before the Court about the Father’s studies to obtain a qualification together with that set out in the Mother’s affidavit at [16], I gained the impression that the Mother has likely been a greater participant in decision-making for the children, although the Father seems to have been involved in some way by the Mother’s own evidence.[7]
[7] Eg Mother’s affidavit at [10].
As far as the parents each spending time caring and communicating with the children is concerned, it may be that the Mother has engaged more, but this is to be understood in the context that the Mother was not working and the Father was engaged in study. I do not draw any inferences contrary to either parent about failure to take opportunity to participate in decision-making, care or spending time with and communicating with the children on the state of the evidence before me, notwithstanding the Mother’s untested evidence in her affidavit at [16].
There is no evidence whatsoever in relation to the respective contributions of the parties to the maintenance of the children. However, it can be inferred from the Mother’s evidence about the financial arrangements between the parties during the relationship that their finances were pooled to meet family and other expenses. As neither party was employed or is employed now the family must have met children’s expenses from Centrelink benefits.
The effect of the children’s separation from the Father and the paternal family have been addressed already and a factor weighing considerably in favour of the father’s proposal being in the best interests of the children.
Noting the agreed fact about the distance between where the parties now reside and the parties’ apparent limited finances, I am comfortably satisfied that there is a real and considerable practical difficulty in facilitating time between the children and the Father were the children to remain in Town D. The parties will be required to incur expenses to facilitate each visit on a scarce social security income, and the Mother’s evidence suggests that she will not always readily meet the burden of the travel and the costs involved.[8] I refer to the Mother’s affidavit at [57] where she attests to difficulties with her vehicle and reliance on Ms E for a vehicle. These are serious concerns because it would appear that the vehicle that the Mother has was that which the parents shared during the relationship, and I infer from the Father’s evidence that he does not have his own transport.[9] Accordingly, I give significant weight to the practical difficulty the Mother’s relocation with the children has imposed and the impact of that on the children’s right to maintain their relationship with the Father.
[8] Mother’s affidavit at [57].
[9] Father’s affidavit at [12].
Although the Mother refers to allegations about the Father’s mental health and health condition, it is difficult to conceive how a person with capacity to study his qualification lacks capacity to provide for the needs of the children whether physical, emotional or otherwise. He may not have contributed to the level expected by the Mother, but that is another matter. I consider this to be a neutral factor, that is, the allegations of mental health and a health condition.
No submissions were made about ss 60CC(3)(g), (h), (l) or (m) of the Act, but it can be inferred from the submissions made on behalf of the Mother and her evidence that the Mother relies on allegations that the father has an inadequate attitude to parenthood. I cannot draw this inference at this time.
The Mother also makes criticisms of the accommodation at Suburb B and the inability of the children to play in the yard, but it is hard to understand how this is a factor weighing heavily or at all in the Mother’s favour. Presumably, the children could attend parks and undertake other outside activities. If the Mother’s submission was valid and a particularly relevant factor in assessing what is in the best interests of the children, most parents living in apartments would be prevented, for this reason alone, from having a significant part in the children’s lives. Reliance on the evidence about a yard and not being able to play in it, in my view, is not a material factor in the assessment that I am required to make.
The Mother’s case also emphasised the crowded and difficult living arrangements at Suburb B and the comparative affordability of private rentals in Town D which she alleged existed. The practitioner for the Father submitted that the affordability of rentals in Town D may be lower than Suburb B, but the price of rentals in Suburb B were still within the affordability of low-income earners on benefits. The Mother’s evidence about attempts to find affordable housing closer to the father is exceptionally limited.
Noting the matters at [37], there is simply insufficient evidence before the Court to make any finding about the comparative affordability of housing in the two locations. Accordingly, I cannot weigh this consideration in favour of one or other party. It also seemed implicit in the Mother’s case that she would find her own accommodation in due course and not rely on remaining at the home of the paternal grandmother if she were to return with the children. The mere contention about price of private rentals in the mother’s affidavit at [36], in my view, carries little weight. She does not say whether she explored public housing in the Suburb B area nor provide direct evidence about those rental costs, which she ought to have been able to do if she had genuinely and properly explored this factor.
The Mother asserts the Father’s accommodation is insecure because, on the evidence before the Court, he would not be able to accommodate the children. This is a reference to the VCAT proceedings and the annexure to the Mother’s affidavit. The annexure identifies that there is an arrears of rent, which has accumulated on the Suburb B property where the parties resided, since the Mother left. It can also be inferred from the content of Annexure that the weekly rent for the property in Suburb B is approximately $345 per week. This is by deduction by dividing the number of days of arrears disclosed in the application into the amount claimed. It is hard to envisage how the Father and the other occupants of the house, even on social security benefits, could not afford to pay this rent between them. There are also competing assertions, not the subject of evidence, I stress, about whether the Mother took money with her when she left the home.
The information in the VCAT application also gives an indication of the rental price the Mother would have to pay if she returned to Suburb B with the children, but I suspect the rent may be somewhat less as she would not require a four-bedroom house.
Noting the state of the evidence as I have just described, I do not give the Mother’s proposal about the children remaining in Town D because of housing insecurity any particular weight at this stage. Addressing the quality of the respective accommodation in Suburb B and Town D, I consider that the evidence suggests that the accommodation is shared in both locations and fairly similar, and it is difficult to lend considerable weight to claims of lack of privacy or preferable living arrangements in Town D.
DETERMINATION
I now turn to my conclusions, noting what is available by way of factual inference on the evidence. The Mother proposes that the children see the father once a month and that the recovery application be dismissed. The Father seeks return of the children and, if the Mother also returns, offers that she stay with the paternal grandmother until she finds accommodation. He does not offer to financially assist the Mother to secure accommodation.
Both proposals have some weaknesses. The Mother’s because the time the children will spend with the Father and paternal family is a far cry from that needed, in my view, to maintain a meaningful relationship in the circumstances of this case, and I am not confident, given the Mother’s actions to date and the reasons I have given, that she will facilitate time except on her terms.
The Father’s proposal, perhaps unrealistically, requires the Mother to live with the paternal grandmother if she were to return with the children. Given the circumstances of the separation, the Mother’s allegations of coercive control and the apparent position adopted by the Mother that she will not voluntarily return with the children to Suburb B pending a final determination, I must take this into account in the orders that I make.
It would appear that the Mother is also either unwilling or unable to make the round trip from Town D to Suburb B for all visits between the children and the Father. That is evident from her affidavit evidence. Her proposal is for one weekend a month. The reliability of her travelling even halfway for this purpose is doubtful, on her own evidence. It can also be inferred that the travel of six hours return will be a significant impost for the children given their ages.
Looking forward, although the children’s relative housing and schooling circumstances are not markedly different to that which they had been previously in Suburb B, if the children were to return it is likely that they would spend more time with the Father and paternal family. I am not at this stage of the view that the Mother’s allegations of family violence should weigh heavily in the Court’s assessment for the reasons I have given.
I take into account that an order for the children to return to Suburb B will entail the children again changing schools and leaving friends and activities which they have undertaken for the last three months. However, this will be alleviated greatly, in my view, because they will return to a school, friends, families and activities that they are familiar with and have been engaged in for the last four years. It can be envisaged that they will adjust seamlessly.
On balance, the considerations I have evaluated in these reasons warrant, at this stage, an order for the return of the children to Suburb B. I do not accept that the Mother’s proposal is better or overall in the best interests of the children. There is, at this stage, insufficient evidence before the Court to prioritise the Mother or children’s alleged need for safety over a meaningful relationship between the children and the Father.
However, because the Father’s proposal for accommodating the Mother and children may not be realistic. The precise terms of the order that the Court will make needs to take into account that:
·the Father will be required to confirm in writing from the landlord’s agent that he is not at risk of eviction; and
·Depending on whether the Mother elects to return with the children, whether the father ought to pay a financial contribution to the Mother to assist with the up-front cost of her securing accommodation within the local area of Suburb B on the assumption that she is unwilling to stay with the paternal grandmother.
I will hear the parties about this shortly. I fully appreciate that an order for the children’s return will cause some destabilisation, but it is necessary to note that this has already been caused by the mother, and it can be reasonably expected that the children will adjust to a return to their previous home, noting their age and all other factors I have addressed.
I now wish to address the specific submissions that were made by counsel for the mother. I am of the view that the circumstances of Sterry & Sterry [2017] FamCAFC 226 (“Sterry”) and Stringer & Nissen (No 2) [2019] FamCAFC 185 (“Stringer”) are distinguishable from the present circumstances. In Sterry there was no independent corroboration of allegations of family violence which involved physical violence and risk of harm. That is a serious matter to consider and one that is not an element of this case.
In Stringer, likewise there were allegations of physical violence which were independently corroborated. In Stringer the appeal was allowed because the primary judge gave too much weight to what he described as unilateral relocation and erred in an assessment of the allegations of family violence made by the mother.
In this case I do not condone how the Mother effected separation from the Father, and at this stage I have doubts about the extent of probative evidence supportive of her claims of coercive and controlling behaviours. However, my assessment is based on a wider assessment of all considerations, as I have addressed in these oral reasons, which focus primarily on giving weight to the risk that not making the orders sought by the father will fracture or fail to promote a meaningful relationship with the Father. I have also considered the children’s distress from separation from the Father and their usual home, as referred to in the Child Protection report, and evidence that suggests that both parents are capable of providing adequate care for the children, although they may not have done so equally in the past, and the apparent neutral comparative housing and accommodation available in each location.
Significant emphasis is placed by the Mother on her need for support. However there is no evidence of a persuasive argument that this is of such importance that it overrides the best interests of the children based on the collective considerations as I have balanced them.
I have given less weight to what at present appears to be subjective perceptions by the Mother of the Father’s behaviour and preferences on her part about accommodation and location of residence. I agree entirely that at this interim stage the Mother is not required to prove family violence allegations she makes against the father, and I accept what the Court said in Salah & Salah [2016] FamCAFC 100 where the Full Court said:
His Honour’s comment “given no other evidence” suggests that his Honour required corroboration or objective support for the mother’s allegations in proof of them. To so suggest is an error. Family violence only takes place in private in circumstances where no corroboration is available.
But I am also mindful in this matter that the father denies family violence, and I cannot lose sight of that based on the authorities in Deiter & Deiter [2011] FamCAFC 82 and Marvel & Marvel [2010] FamCAFC 10, and I also have concerns about the Mother’s allegations based on her own evidence, as I have explained in these reasons earlier.
I appreciate the submission by Counsel for the Mother that research, literature and experience of this Court is that parties do at times endure coercive and controlling behaviours by intimate partners for many reasons, and the fact that they have done so is not necessarily telling of whether the behaviours occurred. However, despite all this I remain of the view that the best interests of the children will be served by returning to live in Suburb B so that they can spend substantial and significant time with the Father and the extended family and continue their lives in the stability that they had in that location.
I agree that the concern alleged about the children experiencing corporal punishment within the Father’s household can be adequately addressed by injunctive orders pursuant to s 68B of the Act, as can those about the use of cannabis alleged against the paternal uncle. Noting the submissions by the Father’s practitioner concerning the timeframes for return of the children, in my view, the children should return to Suburb B before the commencement of Term 4 so that they can continue with the education that they commenced at the start of the year at the end of the Term 3 school holidays.
If the Mother does not also return with the children, I will need to hear further submissions.
If the Mother does return with the children, I will need to hear submissions from the Father’s practitioner as to contributing to the cost of accommodation if she decides not to stay with the paternal grandmother.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 15 November 2023
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