Hansford and Phillips

[2013] FCCA 2161

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANSFORD & PHILLIPS [2013] FCCA 2161

Catchwords:
FAMILY LAW – Interim arrangements for care of children aged 9 & 6 – family previously living in Canberra – both parties originally from Adelaide – mother has elected to remain living in Adelaide with the children concerned following a holiday in South Australia – father asserts this represents unilateral relocation of the children which has occurred without his consent – mother asserts father a coercive and controlling person who has raped her – father asserts that the mother has significant issues to do with her psychiatric functioning – nature of interim hearing – principles to be applied in applications for interim relocation – sole occupancy of former family home – meaningful relationship – best interests.

Legislation:  

Family Law Act 1975, ss.4; 60CA; 60CC; 61DA

AMS v AIF (1999) FLC 92-852
C & S [1998] FamCA 66
Morgan & Miles [2007] FamCA 1230
U v U (2002) FLC 93-112

Applicant: MS HANSFORD

Respondent: MR PHILLIPS

File Number: ADC 4008 of 2013

Judgment of: Judge Brown

Hearing date: 19 November 2013

Date of Last Submission: 19 November 2013

Delivered at: Adelaide

Delivered on: 19 November 2013

REPRESENTATION

Counsel for the Applicant: Ms Tinning

Solicitors for the Applicant: Clelands

Counsel for the Respondent: Ms Lindsay

Solicitors for the Respondent: Nicholl & Co Lawyers

ORDERS

1. The proceedings be transferred to the Canberra Registry of the Court.

2. The proceedings be listed for directions before Judge Baumann on 18 December 2013 at 9.30am on which occasion, if time permits, consideration can be given to any financial matters arising as a consequence of the orders given this day and further consideration given as to whether the final hearing can be expedited.

3. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be urgently appointed to represent the interests of the children X born (omitted) 2004 and Y born (omitted) 2007 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to the Legal Aid Office, Australian Capital Territory within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

4. Immediately upon appointment by the said Legal Aid Office, Australian Capital Territory or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

5. The mother return the children of the marriage X born (omitted) 2004 and Y born (omitted) 2007 (hereinafter referred to as “the children”) to the father at the Canberra Airport or such other location within the Australian Capital Territory as agreed between the parties no later than 6pm on 23 November 2013 or at such other time as agreed between the parties on 23 November 2013 subject to arrangements for the children’s return travel to Canberra, which expense is to be borne by the father.

6. Thereafter the children live with the father at the former family home located at (omitted) between 23 November and 4:00pm on 30 November 2013 and the father, in tandem with the mother, take all necessary steps to re-enrol the children at the schools previously attended by them in the Australian Capital Territory.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. In the event the mother elects to live in Adelaide, pending final hearing, the children live with the father in Canberra and spend time with the mother, at times to be agreed and failing agreement as determined by the court.

2. In the event the mother fails to comply with the order 1 hereof to return the children to Canberra, a recovery order issue without further reference to the mother.

3. In the event the mother elects to live in Canberra, pending final hearing, the children live with each of the parties as follows:

   (a)With the mother from 4:00pm on 30 November 2013 until after school on 5 December 2013;

   (b)With the father during term times in alternate weeks from after school on Thursday until school recommences the following Monday commencing on 5 December 2013 and in the other week of each fortnight from after school on Wednesday until school recommences the following Thursday commencing 11 December 2013.

   (c)With the mother at all other times during school terms NOTING that the father’s final period pursuant to order 9b hereof will conclude at 9:00am on 23 December 2013 and it being further noted that his term time with the children in 2014 will commence with the children living with the father from the conclusion of school on Thursday, 30 January 2014 until the re-commencement of school on 3 February 2014.

   (d)During the end of year school holiday in 2013/2014 on a week about basis with the mother to have the first week commencing at 9:00am on 23 December 2013 and the father to have the second week commencing at 9:00am on 30 December 2013 and so on in each alternate week thereafter subject to the children spending from 3:00pm on 25 December 2013 until midday on 26 December 2013 with the father.

   (e)In the event the children are in the care of the father on X’s birthday being (omitted) 2014, the mother is to spend time with both children from 10:00am until 3:00pm on that day.

4. The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the children or from permitting any other person to do so or from discussing these proceedings other than to explain to the children the practical implications of the orders made this day in respect of the ongoing parenting of the children.

5. The father vacate the former family home no later than 4:00pm on 30 November 2013 and thereafter the mother have sole occupancy of the property subject to her paying all outgoings on the property as they arise from time to time.

6. The children are to be exchanged at their school, wherever possible, or at any other location to be agreed between the parties and failing agreement to be at the (omitted) Police Station.

7. The oral reasons given today be transcribed and provided to the parties.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADC 4008 of 2013

MS HANSFORD

Applicant

And

MR PHILLIPS

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were orally delivered immediately following the interim hearing concerned.  Given the moment and controversy of the court’s decision in the matter, it was ordered that the reasons be transcribed, so that each party might consider the basis on which the decision was made.

2. In addition, it was ordered that the children concerned be independently represented.  In these circumstances, it was useful for the children’s future representative to be informed of the reasons for the court’s decision.

3. These are the reasons concerned.  They have been corrected from the transcript, in the sense that punctuation has been inserted; paragraphs inserted as intended; errors in expression corrected; footnotes, headings and case references inserted; and corrections made necessary to make the orally delivered reasons amenable to being read.

4. It is nine minutes past five on Tuesday 19 November 2013.  I have to deal with an application in which Ms Hansford is the applicant and Mr Phillips is the respondent.  I will refer to them respectively as the mother and father in these orally delivered reasons for judgment.

5. The case comes before me and into court for the first time today.  It comes into court on what lawyers commonly call the duty day.  That is the day on which cases come into court for the first time.  Inevitably, the cases are all different in nature and complexity.  It is, invariably, a busy and difficult day.  So it has proved to be today, which explains the lateness of the hour.

6. The case concerning Ms Hansford and Mr Phillips raises complex issues of a type which this court is frequently asked to resolve at an interim stage, invariably against a background of extreme emotion, where the time for hearing is limited and where, very often, documents have hastily been prepared. 

7. It is a case which raises issues which lawyers categorise as relocation.  That is, one of the parents concerned wishes to live with the child or children of the relationship, far away from the other parent concerned, in circumstances where, if the parent left behind chooses not to move in tandem with the moving parent, it will be difficult for that parent to spend regular and quality periods of time with the children concerned.

8. Such cases precipitate strong emotions in the parents concerned, for obvious reasons.  They raise many issues, not least of which concern an individual’s freedom to live how and where he or she chooses and the entitlement of a child to have a meaningful level of relationship with both his or her parents.

9. The parties are the parents of two young children.  They are X, born (omitted) 2004 and Y, born (omitted) 2007. 

10. The mother commenced these proceedings on 25 October 2013, in the court’s registry in Adelaide.  At her request, the proceedings were listed urgently today.  On an interim basis, Ms Hansford seeks that she should have sole parental responsibility for the two children and they should live with her. 

11. It is implicit that she wishes to live, with the children, at an address in (omitted), in the southern suburbs of Adelaide.  It is common ground between the parties that Ms Hansford is recently arrived in Adelaide.

12. Ms Hansford also wishes that injunctions be made, which would restrain the children’s father, Mr Phillips, from contacting her and the children, or attending at an address in (omitted), where she is currently residing with her parents. 

13. It is also common ground between the parties, that recently, the two children concerned have been enrolled at the (omitted) Primary School.  The circumstances of the children’s enrolment at that school are controversial.

14. The father responded to the application recently.  He did so on 7 November 2013.  On an interim basis, he seeks that the case, instituted by the mother in this court, be transferred to the court’s registry in Canberra. 

15. Significantly, in the context of these proceedings, he seeks an order that the mother return the two children, to where they formerly lived, at an address at (omitted) in (omitted) in the ACT.  He also seeks an order that the two children be independently represented.

16. Those are the parties’ formal interim applications.  They do not, in my view, encompass the complexity of the case concerned.  It is agreed between the parties that both of them have very significant connections in the Adelaide region, where both their respective parents continue to live. 

17. It is also common ground that, in January of 2010, the parties and the two children moved from Adelaide to Canberra, ostensibly so that the father could pursue his career with the Australian Taxation Office.  Accordingly, the family has lived primarily in Canberra since January of 2010.

18. It is also agreed between the parties that, during the recent end of third term holiday, they came, as a family, to visit other members of their family in Adelaide. 

19. From the father’s perspective, the holiday was for a finite period and it was anticipated that he, the mother and the two children, X and Y, would be returning to their home in Canberra, which has been rented for the past few months.

20. That did not occur.  It is the mother’s position that she wishes to remain living with the two children concerned, where she feels comfortable and secure, which is in the vicinity of her parents and other family members in Adelaide. 

21. It is her case that it is untenable for her to be compelled to return to live in Canberra.  She alleges that, in Canberra, she was the victim of a controlling and coercive relationship, in which she was the subject of Mr Phillips’ abusive control.

22. Significantly, she alleges that in March of 2012, she was brutally raped, by Mr Phillips, in the parties’ family home.  It is her case that it is this event, in March of 2012, which marks the period from which the relationship between the parties, from her perspective, came to an end. 

23. It is the fundamental underpinning of her case that she has come to Adelaide, with the children, to escape from an abusive spouse and seek the safety offered by her family, who live in Adelaide.  It is her case that she has always provided the bulk of the children’s day to day care.

24. For his part, the father vehemently denies that he is the violent spouse portrayed.  He denies that he is a controlling person.  To the contrary, he asserts that he has provided as much support as he can to his partner and she has made these false allegations against him to advance her own personal interests in the matter, which are not necessarily those of the children. 

25. It is his position that he did not and has never consented to the children moving to Adelaide.  It is his position that to all intents and purposes, their home is in Canberra.  It is his case that if the court is to determine where the children are to live and with whom of their parents, that difficult case must be determined on a level playing field, not one skewed to the advantage of Ms Hansford, who has moved the children unilaterally and without reference to him, certainly not with his formal acquiescence. 

26. In her initial affidavit in support of her application, the mother gave some of the parties’ history with one another.  They have been involved with one another for a significant period of time.  They began to live together in mid-2003 and married on (omitted) 2004.  X is now aged nine and Y, or Y, is aged six. 

27. It is reasonably common ground between the parties that they shared responsibility for caring for the children along what are often described as being conventional lines, in the sense that Mr Phillips was the family’s main breadwinner and Ms Hansford was involved in home duties. 

28. The incident, of which the mother complains, that she was sexually assaulted by the father, as I say, occurred in March 2012.  That is now well over 18 months ago.  The incident was not reported to authorities in the ACT and, as I understand matters, is not capable of independent corroboration at this stage.  It is the mother’s case that she has reported the incident to police at (omitted) on 24 October 2013.  That, of course, is the day prior to her instigating these proceedings.

29. In early October of 2013, the parties arrived in Adelaide for a holiday.  It is the mother’s position, as I say, that her relations with Mr Phillips were irretrievably damaged by what occurred on 12 March 2012. 

30. However, it also seems to be her position that she formally communicated this information to Mr Phillips only when the parties arrived in Adelaide in October of this year and that, in a formal sense, is the date on which she believes that the marriage between the parties can be regarded to have irretrievably broken-down.

31. Thereafter, both of the parties, for obvious reasons, were placed in a difficult position of some conflict.  The father wanted to return to his life in Canberra, as it had largely been before.  The mother did not want the children to go back to Canberra.  Certainly, it is her position that she finds Canberra an unpalatable place in which to live, because it is bereft of family support for her. 

32. The parties attempted to resolve the issue, through a process of mediation, but that was ultimately unsuccessful.  I am not surprised at that.  Relocation cases, for obvious reasons, create very great difficulties.  On the one hand, Australia is a free and open society.  As such, its citizens are entitled to live how and wherever they choose. 

33. I have no authority to direct Ms Hansford to live anywhere.  Similarly, I cannot direct Mr Phillips to live in Adelaide.  My jurisdiction and my authority centres only on the best interests of the children concerned in the cases which come before me.  It is the best interest of children which are paramount. 

34. On the other hand, according to the applicable legislation, it is children who are entitled to have a meaningful level of relationship with their parents. 

35. So in cases involving a parent wishing to relocate away from the other parent concerned, very often, conflicting claims of right come into play.  On the one hand, parents can live where they wish.  They have freedom of movement.  On the other hand, children have an entitlement to have a proper and meaningful level of relationship with their parents.

36. In the period of October, it became clear that there was an unbridgeable impasse between the parties.  The children are legally required, of course, to attend primary school.  Arrangements were made for the children to be enrolled at (omitted) Primary School. 

37. It is the father’s position that he signed any necessary enrolment forms under a significant level of duress and only because it was apparent that the children needed to attend school, whilst the issues between the parties were sorted out. 

38. It is the mother’s position that she has always been the children’s primary carer.  As such, it is the underpinning of her case that, if she is supported and happy, in the sense of living where she wants to, with familial support close at hand, she will provide the care the children need much better. 

39. Necessarily, it is her case that if she is compelled to return to Canberra at the behest of the person who has violently sexually exploited her, this must have grave implications for her level of functioning, both as an individual and a parent. 

40. From her point of view, given that the children have strong relationships in Adelaide, have lived in the city for a significant period of their lives and she is their primary carer and she wants to live in Adelaide, from her perspective, it is a simple conclusion to reach, that the children’s best interests will be served, at this interim stage, if they continue to live in Adelaide.

41. In addition, it is her case that it is not inconceivable for Mr Phillips to move, at least temporarily, to Adelaide.  As I have indicated, it cannot be said that he is a stranger to the city.  He has lived and worked here for a significant component of his life.  It is the mother’s understanding that the Tax Office can accommodate his situation and he can work remotely from Adelaide.

42. One significant aspect of the mother’s initial affidavit is that she makes no reference to what, from Mr Phillips’ perspective, is a very significant component of the case. 

43. It is Mr Phillips’ position that Ms Hansford has significant and long standing issues, which arise from her mental health.  It is also his position that, at no stage, did he agree to X and Y moving permanently to Adelaide and Ms Hansford has been disingenuous about her motives about the move, as she has in concealing issues about her health. 

44. Mr Phillips does, at least I think implicitly, point to the ethos of the Family Law Act, which indicates that where parents share responsibility for their children – and up until this stage, there have been no orders that have displaced the ordinary legal provisions in respect of the children concerned here – parents share responsibility for making major decisions to do with the children.

45. Major decisions[1] pertain to such things as education and health and particularly a decision which would involve a child or children moving far away from the parent, to such an extent that it would make it significantly difficult for that parent to spend time with the children.   Decision making in respect of such matters is to be shared and consulted upon by the parents concerned.

    [1] See Family Law Act section 4

46. So it is clearly Mr Phillips’ position that he in no way agreed to the children remaining permanently in Adelaide.  It is difficult, at this juncture, for Ms Hansford, I think, to assert otherwise. 

1. It is, I think, at least the flavour of her case that, because of what she sees as a power imbalance in her relationship with Mr Phillips, she was forced, to a large extent, to act clandestinely in terms of her ultimate aim to move to Adelaide.  It also may be the position, for all I know, that her desire to remain in the city, crystallised upon her arriving here.

2. At any event, there is no doubt that the family had return tickets from Adelaide to Canberra.  That is, Ms Hansford, X, Y and Mr Phillips had return tickets, leaving Adelaide on 13 October, which was, I think the Sunday before school resumed in Canberra.

3. In his affidavit material, Mr Phillips has attached a very brief medical certificate from a Dr P, who is, it seems, in general medical practice, but I do not know for certain, at the Health Service attached to the (omitted) University. 

4. His certificate is dated 18 October 2011 and certifies that Ms Hansford has bipolar disorder, depression, hypomania and is currently on medication and treatment for these conditions.  The certificate says nothing more.

5. It is the father’s position that it was remiss and potentially misleading for the mother not to have alluded to her psychiatric condition in her affidavit.  Mr Phillips also asserts that Ms Hansford has what he describes as a congenital abnormality of her brain and lacks the corpus callosum, which he categorises as being the major channel of communication between the two hemispheres of her brain. 

6. Mr Phillips, of course, is not medically qualified and I am not qualified to interpret what that means in respect of Ms Hansford’s level of psychiatric functioning.  But it is Mr Phillips’ case that there have been manic episodes associated with Ms Hansford’s condition and that she has required major psychiatric intervention. 

7. In a more recent affidavit, the mother has deposed that as a child, she was the victim of sexual abuse.  It is her position that the diagnosis made by Dr P has been overtaken by other factors and a more reliable diagnosis is that she suffers from some form of post-traumatic stress disorder.  She does, however, concede that she has, in the past, been medicated and was admitted to a hospital in the ACT in September of 2011.

8. It is Mr Phillips’ position that Ms Hansford, of late, has been undergoing a point of crisis in terms of the management of her psychiatric health and that this situation has been escalating in its seriousness over the past few months. 

9. It is common ground that recently the mother spent a period of time in Melbourne and during this period of time, the children were in Mr Phillips’ care.  The parties disagree as to the motivation for the trip. 

10. From the mother’s point of view, she needed time to emotionally regroup and have some time on her own to recover from the difficulties in her relationship with Mr Phillips. 

11. From the father’s perspective, the trip was precipitate and not thought through by Ms Hansford.  In his assertion, the lack of planning is evidence of what he would describe as the mother’s worsening condition.  He would tie what has happened recently in October to what he would categorise as the mother’s worsening mental health, as exemplified by the sudden trip to Melbourne, leaving the children behind.

12. It is his position that he is a loving and involved father.  He concedes that he has been in full-time employment.  However, it is his position that, during the year gone by, due to what he regards as the mother’s instability, he was called upon frequently to step up to the plate and become the children’s main provider of care. 

13. He says he is involved in every aspect of the children’s lives, including ballet and girl guides and activities of that kind and that he knows the children’s teachers and principal well.  As such, it cannot be said that he is a dis-interested parent in any way. 

14. In particular, he points to the fact that, when the mother did go to Melbourne, she was content to leave the care of the two children to him and necessarily, from his perspective, that indicates that she has confidence in his capacity as a parent.

15. From the mother’s point of view, she asserts that Mr Phillips’ work is arduous, time consuming and therefore, it must be the case that she is and has been the primary carer of the two children concerned, whilst Mr Phillips has been at work. 

16. In this context, she more recently, in her second responsive affidavit, whilst conceding some issues to do with her psychological and psychiatric functioning, says those issues cannot be of such moment to challenge her role as the children’s primary carer, given Mr Phillips has always remained in full time employment and has been content to allow her to be at home with the children. 

17. Accordingly, she would say that Mr Phillips has opportunistically seized on these matters – relating to her health – to advance his case and attempted to undercut her true account of him as a coercive and controlling person.

Issues in dispute between the parties

1. As this summary of evidence indicates, the respective positions of the parties are polarised in the extreme.  The most significant disputes focus on the nature of the relationship between the parties. 

   ·On the one hand was the mother disempowered and isolated throughout the latter period of the parties’ relationship, particularly following the father’s brutal rape of her. 

   ·On the other hand, is it, as the father says, that these claims are concocted and there is no truth whatsoever to the claim that he raped the mother.

   ·What are the implications of the mother’s psychiatric history?

   ·What was the background to the mother having a trip to Melbourne?  Where will the children’s best interests be served in the short to medium term? 

   ·What are the practical implications of the children returning to live in Canberra?

   ·How will the children maintain an appropriate level of relationship, with their father, if they continue to live in Adelaide and he remains in Adelaide?

The nature of an interim hearing

1. The case comes before me at an interim stage.  At this stage, I have only read affidavits, which have been hastily prepared by each of them.  There has been no cross-examination, in respect of what has been said in those affidavits.  As such, I am not in a position to make findings of fact about who is telling the truth in respect of the very many issues in dispute between them.

2. In addition, at this point, there has been no independent assessment of the needs of the children themselves.  It is invariably the case that in cases of this nature there is an independent assessment by a psychologist usually, but certainly some qualified expert, as to the nature of the children’s relationship with each of their parents. 

3. It is also very significant in this case, I think, that I have a dearth of evidence regarding Ms Hansford’s psychiatric condition and what are the implications of that condition for the two children concerned.

4. It is, regrettably, frequently the case that the court is called upon to make interim determinations, against a background of urgency, in circumstances where the parties concerned have diametrically opposing views as to what arrangements will best serve their children. 

5. Notwithstanding the truncated nature of this hearing, the service of X and Y’s best interests is the most important consideration in the case.  The children’s best interests are paramount in this regard [see section 60CA of the Family Law Act]. 

6. The same principle applies at both the interim and final stage.  The difference between the two types of hearing being that interim hearings do not determine final arrangements for the care of children, whereas final hearing do.  The outcome of an interim hearing is thus provision in nature.

Legal principles applicable

1. The aims and principles of the part of the Family Law Act, dealing with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in the terms of the exercise of parental responsibility and the time they spend with the child concerned, commensurate with the need to protect the child from suffering physical or psychological harm as a result of being subjected to abuse, neglect of family violence.

2. Accordingly, in all cases to do with children, the starting point for any parenting order is for the court to consider whether the parents concerned should have equal shared parental responsibility for their child.  In this regard, see section 61DA. 

3. This presumption is rebutted if it is found on reasonable grounds that one of the child or children’s parents has abused the child concerned or exposed the child to family violence. 

4. At this interim stage, the presumption is also rebutted if the court considers it inappropriate for it to be applied.  In this case, given the polarised positions of each of the parties, it would seem inappropriate for it to be applied.

5. It seems unlikely that the parties are going to be able to consensually exercise any aspect of parental responsibility for the children concerned easily at this stage when their emotions are necessarily raw and the circumstances between them difficult. 

6. However, I must still consider the best interests of the children and to do this I must consider a long list of matters contained in section 60CC of the Act. 

7. There are two categories of matter I must consider – primary considerations and additional considerations.  There are two primary considerations.

8. Firstly, the need to ensure that the children have a meaningful level with both of their parents and, secondly, the need to ensure that the children are protected from harm, both physical and psychological harm which may arise if they are exposed to any kind of abuse or neglect, including family violence.

9. The father approaches the case from the first of these two primary considerations.  It is his case that, if the children continue to live in Adelaide, they will be deprived of the potential to continue to have an ongoing and meaningful relationship with him because, necessarily, if he remains living in Canberra, he will only be able to see the children during school holidays and given the ages of the children concerned, this must mean that their relationship with him will be leeched of its intimacy and meaning.

10. From the mother’s perspective, she approaches the case from the second consideration.  She would categorise Mr Phillips as being a violent and controlling person, therefore an inappropriate person to have extensive involvement with the children concerned. 

11. She would also, I think, posit her case on the basis that the children are likely to come to some form of psychological harm, if she, as their primary carer, is compelled to live in circumstances where she does not want to be, at the behest of a person who has most significantly violated her. 

12. As a consequence of recent legislative amendments to the Family Law Act, the second consideration relating to family violence is to be given pre-eminence.  However, in my view, I am not in a position to ignore issues to do with the children having a meaningful relationship with their father in the context of this relocation case.

13. For obvious reasons, allegations of family violence must be closely examined by the court, bearing in mind the serious consequences exposure to family violence can have for children. 

14. If Mr Phillips has sexually assaulted Ms Hansford, there can be no doubt that this is family violence within the definition provided by section 4 of the Family Law Act. Family violence is specifically defined in section 4(1)(a) of the Act, it is behaviour which coerces or controls a family member. Fundamentally, it is this evil to which Ms Hansford’s complaints are directed.

15. She asserts that Mr Phillips has controlled or coerced her, throughout the parties’ relationship, the rape being the most serious but only one aspect of this on-going process of control and coercion of her. 

16. Children learn their behaviour from their parents and parents who use force or coercion to resolve disputes or get their way are not appropriate psychological role models for children.  However, allegations of family violence are easy to make in proceedings such as this and difficult to refute. 

17. In this context, I note, however, that family violence, more often than not, arises within the private confines of a home and may evoke emotions such as embarrassment, shame, perhaps fear, which make it difficult to report to independent authorities and so make it difficult for it to be verified.

18. In addition, family violence is not a homogeneous concept.  It can range from impulsive behaviour that occurs in difficult circumstances and it can be at the other extreme, more systematic and deliberate.

19. But, notwithstanding the difficulties arising in verifying the existence of family violence and categorising its nature, given the structure of the legislation concerned and the danger such behaviour constitutes to the well-being of children, the court is duty bound to give all allegations of family violence its close consideration.

20. It would seem to me Ms Hansford’s position that the violence of what she complains is of the systematic and deliberate kind, to which the legislation is specifically directed.   

21. Mr Phillips, as I hasten to reiterate, vehemently refutes the claims and allegations made against him.  In this regard, I must bear in mind that the very serious incident of which the mother complains occurred allegedly a significant period of time ago and she has reported it to the police only in the context of these difficult proceedings between the parties.

22. In those circumstances, although I am not in a position to ignore the mother’s claims, I cannot make any concluded finding of fact one way or the other.  It is also, I think, of some significance that, in the event the mother is successful in her interim application to remain living in Adelaide, she would envisage the father spending significant periods of time with the children.   

23. It is also her position that, if it is ultimately the court’s decision that the children are to be returned to Canberra, she would want to be the children’s primary carer in Canberra and, in those circumstances, she is open to the children spending lengthy periods of time with their father.

24. She proposes from after school on Thursday until the end of Sunday evening in one week of each fortnight and overnight on Wednesday in the other week of the fortnight in school terms, as well as for significant blocks of school holidays.  This extent of time suggests that, although she categorises Mr Phillips as being a threat to her, she does not regard him as being a direct source of danger to the children.

25. But in a case such as this one, these allegations, I suspect, have a long way to go and are, no doubt, capable of being expanded upon as the case goes on. 

26. It is also, I think, significant that I have no evidence from any independent person, even one who is related to the parties, as to what has occurred of late in Adelaide in October, between the children and each of their parents, in the difficult circumstances which have come about recently.

27. As I say, issues to do with relocation are inherently difficult.  As such, the High Court, in a case called AMS & AIF,[2] has indicated that relocation cases invariably require a close and delicate analysis of the various issues which they involve.  It is usually impracticable for there to be such an analysis at the interim stage.

    [2] AMS v AIF (1999) FLC 92-852

28. As a consequence of that, it is usually considered preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocation have potentially serious ramifications for children, particularly young children, in terms of their parental relationship.  In addition, there is a risk that the determination of a relocation issue, at the interim stage, may make the need for a final hearing redundant.

29. As such, the Full Court of the Family Court in cases such as C & S[3], which was delivered in May of 1998, has indicated that it is usually preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the children concerned in regards to one or other of their parents, particularly if that recent development has been created by the actions of one parent alone.

    [3] C & S [1998] FamCA 66

30. In this case, it is the father’s position that the mother has engineered a situation where the children have come to Adelaide, an outcome to which he did not consent.  If the children continue to remain living in Adelaide and he remains living in Canberra, this state of affairs will significantly alter the nature of his relationship with the two children, potentially to their detriment.  As such, it is not an issue which is conducive to being determined definitively at the interim stage.

31. In those circumstances, he would say that there are significant issues arising, from his perspective, but also of a general nature, in the case.  Essentially, parents should not be allowed to take unilateral action in respect of a child or children in situations which are not of inherent urgency.

32. This brings me to a case to which Mr Phillips’ counsel had regard; it is a case called Morgan & Miles[4], a decision of Boland J, which was handed down in 2007.  Her Honour confirmed that the court should be reticent to determine issues of relocation at the interim stage.  She said as follows:

    It is highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged hearing and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases.

    [4] Morgan & Miles [2007] FamCA 1230

1. In Morgan & Miles, her Honour, in effect, said that issues to do with relocation require the exercise of a carefully calibrated judicial discretion, and, as such, are not the types of cases which should be determined at the interim stage unless there is a particular species of emergency arising from them.

2. It is, I think, Mr Phillips’ position that there is no special degree of emergency, which would justify the children being relocated to Adelaide, away from the home with which they are familiar in Canberra.  Accordingly the court should exercise great caution so as not to condone the relocation after the event. 

3. That is not to say that, at the end of the day, when all the evidence is gathered, it may not be the decision of the court that the children’s best interests will be served by them living with their mother predominantly in Adelaide.

4. In the case of U & U,[5] which was a decision of the High Court in 2002, the High Court considered it inherently sexist that one parent, invariably a mother, was required to stay in a location, which she found unpalatable, so that children could have the best possible relationship with the other parent, invariably the father, when there was no consideration to the father moving to where the mother wished to be.  

   [5] U v U (2002) FLC 93-112

5. It was said that, depending on the circumstances of the case concerned, it may be incumbent upon the court to investigate the possibility of one parent moving to be closer to the child or children concerned rather than necessarily directing that a child be moved closer to the other parent or be restrained from being moved in the first place.

6. I say these things because I am at pains to point out to the parties that the case raises very complicated and difficult issues, both of law and emotion, necessarily.  Whatever I do, I will upset one or other of the parties. 

7. If I do what the mother wishes, the father will feel hard done by and unheard.  If I do what the father wants, the mother will feel that she is being compelled to go back to a location where she was bitterly unhappy.  She will feel that her needs have been disregarded.

1. In addition, there are the interests of other persons, who have not as yet provided material in this case.  They, of course, are the grandparents on both sides of the family.  Necessarily, I would expect that Ms Hansford’s parents would prefer their daughter to be close to them, with their kith and kin, in the form of the two children concerned.

Conclusions

1. It is now necessary, as best I can, to marry up the legal principles, which I have attempted to outline, with the facts of the case.  I am conscious that I have now been speaking for about 50 minutes.  I regret that and apologise to everyone for the burden that involves.

2. The irony is that very often an ex tempore decision, which the urgency of the case compels be delivered, is a more lengthy process than reasons which are prepared at length and put in writing to the parties.  I regret the length of time it has taken to deliver the reasons orally.

3. As I have already, perhaps pompously, remarked, the various outcomes available to me cannot be manipulated like a Rubik’s Cube to achieve a perfect result, which will satisfy everyone.

4. In this case, I think, I have to give significant weight to the unilateral nature of the mother’s actions.  I am not of the view that the situation that confronted her was one of such a degree of emergency that the only thing she could do was elect to remain living with the children in Adelaide. 

5. The allegation of rape has been reported to police recently, in the context of the mother deciding she wishes to remain with the children in Adelaide.   It is denied by the father.  Return trips had been booked.  Although the rape, if true, is a matter of the upmost importance, it cannot be said to represent a recent form of emergency.

6. Whatever are the circumstances of the mother’s trip to Melbourne, she was prepared to leave the children in the father’s care and accordingly, by necessary implication, she does not consider he represents a threat to their welfare or that he will be unable to care for them.  It is also significant that she is open to the children spending significant periods of time with him, either in Adelaide or Canberra.

7. I am also concerned that, at first instance, she was not fully frank about her psychiatric condition.  In all these circumstances, I am concerned that it would not be in the best interests of these children for this issue of relocation to be decided in the mother’s favour at this interim stage.

8. It seems to me that the children have a significant level of relationship with both their parents.  This being the case, I have to give significant weight to the benefits both children are likely to have from having an ongoing and meaningful relationship with their father.  I think I must exercise considerable caution in respect of the relocation aspect, given its unilateral aspect. 

9. For those reasons, I have come to the conclusion that, pending final hearing, the children should be returned to live in Canberra and that they should spend significant periods of time with each of their parents.  I reached this conclusion on the basis that both parents have been significantly involved in providing care for the children up to this stage.

10. It seems to me to be more likely than not that the mother has provided more of that care.  Whether she is to be categorised, in the jargon of social scientists, as the children’s primary carer, I do not know at this stage. 

11. In addition, at this stage, I do not know what the implications of the mother’s psychiatric condition are.  Whether on the one hand, as the father asserts, she is at a point of crisis in her health or whether, on the other, as she asserts, the difficulties in her psychiatric health relate to the father’s control and coercion of her in the past and are largely resolved.

12. On both parties’ cases, they acknowledge that the other has much to offer the children.  In these circumstances, it is my view, at this stage, that any issue of relocation should be determined, one way or the other, only in the context of a full hearing, which will involve the court examining all the possible permutations of the case, in circumstances which do not advantage one party over the other.

13. This must entail the children live in Canberra pending the final hearing.  This situation creates its own logistical dilemmas, as Ms Hansford has said that she would not countenance the children living away from her.  Given the court’s decision, she will return to live in Canberra, pending the final hearing.

14. The parties have only one residence in Canberra.  I think it would be unworkable for the parties to share that residence.  Both parties have a claim of right on the property concerned.

15. It is the mother’s position that she is un-resourced personally in a financial sense, however I am told that she has some modest income from a private source that amounts to $1900 per month. 

16. Mr Phillips is in paid employment.  He has a superior income to that of the wife, but I do not think he can be described as being a wealthy person. The parties’ separation necessarily must precipitate a period of financial crisis for each of them. 

17. It is, I think, the reality that, to some extent, the parties must each bear some of the financial burden, arising from their separation and their need to be both available for their children, but necessarily because he is in paid employment, that burden will, in the short to medium term, fall more heavily on Mr Phillips’ shoulders.

18. I had hoped that the parties could begin the process of negotiating the labyrinth of complexity that confronts them, given their separation.  I had endeavoured to indicate to each of the parties during the course of the hearing which has now consumed, I think, about four hours or so, that the court did not very often condone the unilateral relocation of children.  In these circumstances, earlier, I asked the parties to think about the practical implications of their situation, from that perspective.

19. I concede that it will be difficult for the mother to return to Canberra, but necessarily that relocation is provisional in nature pending a more exhaustive inquiry by the court.

20. As the High Court has observed, it is not beyond the possibility that Mr Phillips may ultimately choose to relocate, in tandem with the mother and children, to Adelaide.  The mother may elect to stay in Canberra or the court may determine some other outcome.  The court has begun to put in place a regime by which these difficult decisions being determined.

21. But pending these difficult decisions being made, which will involve the involvement of a third party because the parties agree that the two children should be independently represented – difficult provisional decisions will have to be made.

22. It seems to me, for the reasons I have provided, that it is untenable for the parties to share the former home.  Mr Phillips had flagged the possibility of the parties cycling in and out of the home from another smaller place to be rented nearby in (omitted). 

23. I think, at this difficult stage of the children's lives, their best interests will be served by them returning to the locale and home they know well. 

24. In Mr Phillips's terms, the property at (omitted), is the home the children have known for most of their entire lives.  He wishes to minimise disruption to them.  However, I have grave concerns about the practicality of this suggestion, particularly in the context of an unresolved allegation of rape.

25. I think that it is impracticable for the parties to cycle in and out of the home.  One of them will have to abandon the home in the short to medium term.  It is a rented premise. 

26. As I said during the course of the hearing of this matter, it may be the case that it is impossible for there to ever be any definitive finding made as to what did or did not happen on 12 March 2012.  It may also be the case that the police elect not to lay charges.  But, of course, I do not know whether that will be the case or not.

27. Although I appreciate that it is a decision of the utmost moment to evict a person from where he or she is entitled to live, in this case, I think the best interests of the children dictate that I really have no other realistic alternative, if the children are to live in Canberra pending the final hearing, which after all is Mr Phillips' position than to make to such a decision, which lawyers term a sole occupancy order. 

28. After some thought I have arrived upon a somewhat complicated regime, which is designed to give Mr Phillips time to make some alternative arrangements regarding finding some accommodation for himself.

29. That necessarily will have financial implications for each of the parties.  At this juncture I have not any extensive evidence regarding their respective financial positions, but I have come to the view that towards the end of November, Mr Phillips needs to vacate the (omitted) home, and that thereafter the children should live with their mother, and also live with their father at some other premises which he will have to obtain for himself thereafter. 

30. The matter will return for directions, before the court, in Canberra, prior to Christmas time.  I also hope that at that point an independent children's lawyer can be appointed by that time.

31. At this stage, if necessary, there can be further orders made in respect of issues to do with spousal maintenance and other matters that relate to the decision I have made today, in a financial sense. 

32. It seems to me that the children need to return to Canberra as quickly as possible and what I have in mind is that that should occur in about a week's time. 

33. Thereafter, it seems to me that it would be appropriate for the children to be re-enrolled at their schools and that they have a period of about a week settling in at (omitted) in the care of their father. 

34. The mother has said although she finds this outcome unpalatable, and it is not with her acquiescence, that if it be the Court's decision that the children return, she too will return to Canberra.  However, if she elects, as she is entitled to do, to remain living in Adelaide pending final hearing, the children should live with their father.

35. Thereafter, what I propose if the mother does return to Canberra that there should be a period of time in which the children settle in with her, and that there be a regime inaugurated during term times whereby the children spend a longer weekend period with their father in one week and an overnight period in the other week with their father. 

36. The school holidays need to be shared week about and I will make orders to do with Christmas and Evie's birthday, which will be 23 March 2014.

37. I will request that Judge Baumann give earnest consideration to the matter being listed for an urgent hearing in Canberra, but that is a matter primarily for those who administer the list in Canberra. 

38. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:  19 November 2013