Hawken & Hawken
[2022] FedCFamC1F 508
•18 July 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Hawken & Hawken [2022] FedCFamC1F 508
File number(s): SYC 235 of 2022 Judgment of: SCHONELL J Date of judgment: 18 July 2022 Catchwords: FAMILY LAW – CHILDREN – Interim Orders – Where the mother sought to relocate to Country E with the children – Where the father and Independent Children’s Lawyer opposed the relocation – Where the father has a long standing history of mental health issues – Where the mother raises serious allegations of family violence perpetuated by the father – Where there are clearly allegations of risk – Where it would not be in the best interests at this stage to separate the children with their father – Where the children need stability and regular time with the father – Where there is a practical difficulty in maintaining a physical relationship with the father if the children move to Country E – Mother’s application dismissed – Children to initially spend supervised time with the father, with supervision to be lifted after three negative hair follicle tests. Legislation: Evidence Act 1995 (Cth) s 75
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 65DAA, 69ZL
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 11
Convention on the Civil Aspects of International Child Abduction
Cases cited: Adamson & Adamson [2018] FamCA 523
Atwill & Marden [2018] FCCA 1401
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Heath v Hemming (No2) [2011] FamCA 749
Marvel & Marvel (No. 2) (2010) 43 FamLR 348; [2010] FamCAFC 101
Mazorski & Albright (2007) 37 FamLR 518; [2007] FamCA 520
Sigley & Evor (2011) 44 FamLR 439; [2011] FamCAFC 22
Division: Division 1 First Instance Number of paragraphs: 97 Date of hearing: 10 June 2022 Place: Sydney Counsel for the Applicant: Mr Livingstone Solicitor for the Applicant: Coppertree Family Law Counsel for the Respondent: Mr Anderson Solicitor for the Respondent: Rafton Family Lawyers Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 235 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HAWKEN
Applicant
AND: MR HAWKEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
18 JULY 2022
THE COURT ORDERS THAT:
1.That the children of the relationship X born in 2012 and Y born in 2014 (“the children”) live with the applicant mother (“the mother”).
2.That the mother be restrained from relocating the children’s residence outside the Commonwealth of Australia.
3.That the respondent father (“the father”) spend time with the children as follows:
3.1. During school term:
3.1.1.each Wednesday from completion of school or 3 pm if not a school day to 8 pm.
3.1.2.commencing on the first Sunday following return to school each Sunday for the first three weeks of each four week period from 9 am to 5 pm (such that on the fourth weekend the children spend the complete weekend with the mother).
3.1.3.That the children communicate with the father via facetime/skype or such other social media platform each Monday and Friday between 6 pm and 6.30 pm.
3.2.During short school term holidays on Monday, Wednesday and Friday of week one of the holidays from 9 am to 5 pm.
3.3. During the Christmas/January school holidays:
3.3.1. from 9 am to 5 pm on Christmas Day in 2022.
3.3.2.On the Monday, Wednesday and Friday of each alternate week commencing on 2nd January, 2023 from 9 am to 5 pm on each day.
3.4.In the event that the children are not spending time with the father on Father’s Day from 9 am to 5 pm on that day.
3.5.In the event that the children are spending time with the father on Mother’s Day, then Order 3.1.2. is suspended for the duration of mother’s day.
3.6. At such other times as agreed between the parties.
3.7.That for the purpose of this order, the father shall refrain from consuming alcohol 12 hours prior to and during the time that he spends with the children.
4.That the time referred to in Order 3 be supervised by a person agreed between the parties.
5.In the event that the parties are unable to agree upon a supervisor, or a supervisor cannot be located, the parties shall do all such acts and things and complete all necessary intake processes for the time to be supervised by R Services, with the father to meet the cost of such supervision.
6.That the children shall attend the B School and each of the parties are restrained from moving the children’s school without the written consent of the other party or by way of court order.
7.That the father is permitted to attend any school event, assembly or parent/teacher meeting or interaction, which parents in the normal course are invited to attend at the children’s school.
8.That within seven (7) days of the date of this order and thereafter on 21 October 2022, 21 January 2023 and 21 April 2023, the father is to make an appointment an attend for hair collection at AWDTS or their nominee for hair follicle alcohol testing.
9.That the testing pursuant to Order 8 herein is to be conducted at an approved laboratory, accredited to conduct hair alcohol testing to the recognised international standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to Order 8:
9.1.The father is to maintain his head hair at a length of not less than four (4) centimetres from the base of the scalp or skin, with neither head hair nor body hair is to be cut shorter than four (4) centimetres, treated, bleached or dyed until such time as this order is discharged.
9.2.The father is required to make the appointments with AWDTS by telephoning … for the purpose of providing a hair sample of 3 cm for hair follicle alcohol testing purposes, with collection to take place at the earliest possible date;
9.3.The father is to provide the collector with photographic identification to be recorded before each hair collection
9.4.The solicitor for the father shall provide a copy of such results to the Independent Children’s Lawyer (“the ICL”) and the mother’s solicitor within forty-eight hours of receipt of the results.
9.5. The cost of the hair follicle alcohol testing is to be met by the father.
10.That the father on the second Tuesday of each month obtain a referral from his general practitioner to an Australian accredited laboratory and provide such blood sample as is required for a liver function test to be undertaken.
11.That within twenty-four (24) hours of the results being received for the liver function testing, the father’s solicitor shall provide a copy of such results to the ICL and the solicitor for the mother.
12.That the father shall continue to attend upon his treating psychologist Ms C and general practitioner Dr D for the purpose of ongoing treatment of his alleged alcohol consumption and monitoring of his mental health, and shall accept and implement all recommendations made by those health practitioners and for this purpose, the father’s solicitor shall notify the ICL of any change of psychologist or general practitioner within forty-eight (48) hours of such change.
13.That leave is granted for the ICL to provide to the father’s treating psychologist Ms C and general practitioner Dr D a copy of the Child Impact Report dated 11 July, 2022.
14.That upon the father’s provision of three hair follicle results negative for alcohol and confirmation that the father has continued to engage with and has been compliant with all treatment by his psychologist and treating general practitioner the father shall spend time with the children as follows:
14.1.Subject to compliance with Order 14.2, the father spend unsupervised time with the children as follows:
14.1.1. in accordance with Order 3.1.1.
14.1.2.in substitution of Order 3.1.2 commencing on the first weekend from the commencement of school term each alternate weekend from completion of school Friday to 5 pm Sunday.
14.1.3.in substitution of Order 3.2 for one half of the short school term holidays commencing from conclusion of school on the last day of term that the children attend school to 12 noon on the middle Saturday.
14.2. That the father provide to the ICL and the mother the following:
14.2.1.three hair follicle results testing negative for alcohol, such results having been undertaken following compliance with Order 8 and 9.
14.2.2.A short form report from the father’s treating psychologist Ms C detailing the following:
14.2.2.1.that Ms C has received and reviewed all three hair follicle test results referred to in these orders and the liver function testing undertaken pursuant to Order 10.
14.2.2.2.that Ms C has read the Child Impact Report dated 11 July 2022.
14.2.2.3.That the father has been compliant with the treatment and direction given by Ms C in respect of the developed mental health plan, alcohol counselling and cognitive behavioural therapy for the father’s anxiety.
14.2.3.A short form report from the father’s treating general practitioner Dr D detailing the following:
14.2.3.1.that Dr D has received and reviewed the hair follicle test results referred to in these orders and the liver function testing undertaken pursuant to Order 10.
14.2.3.2.That Dr D has read the Child Impact Report dated 11 July 2022.
14.2.3.3.That the results of the testing regime as referred to in these Orders do not give rise to any concern that the father has recommenced consuming alcohol.
14.2.3.4.That the father has been compliant with Dr D treatment and direction in particular compliance with prescribed medication addressing his mental health and compliance with direction regarding alcohol abstinence.
15.That within seven (7) days of the day of these orders the parties shall contact V Services on … to register the children with the BB Program and shall ensure the parties and children’s attendance on any appointment or sessions in order to participate in the BB Program.
16.The parties through their legal representative shall inform the ICL of the location of the BB Program the children are participating in within seven (7) days of registration with the program.
17.That leave be given leave to the ICL to provide a copy of the Child Impact Report dated 11 July, 2022 and a copy of these orders to the manager of the BB Program.
18.That within seven (7) days of the date of these orders the parties register with W Services (phone …) and thereafter complete the Parenting Orders Program.
19.That the parties through their legal representatives notify the ICL of their registration with the parenting orders program and upon completion of the program provide to the ICL confirmation of completion of the course.
20.The neither party shall physically discipline the children.
21.That neither party shall denigrate the other party or a member of their family to, in the presence of or within the hearing of the children and shall use their best endeavours to ensure that no third person denigrates the other party or a member of their family to, in the presence of or within the hearing of the children.
AND THE COURT FURTHER ORDERS THAT:
Court Event
22.The proceedings are listed for trial for four days commencing on 11 April 2023.
Hearing fees
23.The Applicant and the Respondent must pay the setting down and hearing fees in equal amounts (or seek an exemption) no later than 28 days prior to the trial date.
Material to be filed
24.On or before 28 October 2022 the Applicant is to file and serve any Amending Initiating Application setting out with particularity the precise final orders sought.
25.On or before 11 November 2022 the Respondent is to file and serve any Amending Response setting out with particularity the precise final orders sought.
26.On or before 23 December 2022 each of the parties are to file and serve:
(a)an updating Financial Statement
(b)a single, consolidated trial Affidavit relevant to their case
(c)a single, affidavit of each witness including expert witnesses (subject to the rules or with leave) they intend to rely upon at trial
(d)an undertaking as to disclosure in accordance with Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and all affidavits are to comply with Part 8.3 Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
27.Except as already provided by these orders, the parties will not be permitted to file any further affidavits and may not rely upon any past affidavits at trial without the leave of the Court.
Single Expert
28.The parties are directed to within 28 days confer and reach agreement as to the appointment of a single expert to prepare a report as to the parenting matters in sufficient time to meet the hearing dates with the costs of such report to be met by the mother and father equally.
29.In the event that no agreement is reached then the ICL is to forthwith restore the proceedings to the list on 48 hours’ notice to the Court and to each other party.
Non-compliance
30.The compliance with these directions is not optional. The consequences of non-compliance can include orders for costs, including on an indemnity basis.
31.In the event that a party does not comply with these directions the court will give consideration to proceeding with the matter on the basis of evidence filed to the date of non-compliance.
32.In the event that any party becomes aware of any matter that would prevent the proceedings commencing on the first date allocated or continuing to conclusion on the last date allocated including non-compliance, that party is to forthwith restore the proceedings to the list on 48 hours’ notice to the Court and to each other party.
Balance Sheet
33.The Applicant shall not later than 28 days prior to the trial date serve upon the Respondent a joint draft balance sheet to include all assets, liabilities, superannuation interests, financial resources and property suggested to be relevant and to include values as alleged by each party and:
(a)the Respondent shall within 7 days of receipt of the draft balance sheet make any additions to the balance sheet as required to reflect contra allegations by the Respondent and any values that are agreed (if applicable)
(b)wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy
(c)upon completion of any Single expert valuation the balance sheet shall be amended to reflect determined/agreed values and
A final, settled version of the joint balance sheet shall be filed not later than 7 days prior to the trial date.
Subpoenas
34.Each party is at liberty to issue such subpoena as they consider relevant to the issues in these proceedings and such subpoena shall be made returnable not later than 14 days prior to the trial date and are to be inspected prior to the first day of hearing.
Liberty to Re-List
35.All parties have liberty to re-list the proceedings for mention in the event of issues arising in relation to preparation for trial.
Documents to be prepared for the Court
Objections
36.Each party shall, not later than 28 days prior to the trial date:
(a)notify the other party in writing of any objection to any material in any affidavit filed by the other party
(b)specify the paragraph or part of the paragraph objected to and
(c)detail the grounds of the objection.
The other party shall reply to the objections in writing within a further 7 days.
The parties before the Trial shall confer in relation to any objections and provide to the Court not later than 7 days prior to the trial date:
(a)the agreed deletions from each affidavit and
(b)the objections to be argued on the hearing date and the ground for the objections.
Case Outline
37.Not later than 7 days prior to the trial date, each party is to file and serve a case outline document in the approved form which shall not, without leave, exceed 5 pages in respect of parenting issues and 5 pages in respect of financial issues and shall include:
(a)a list of the material relied upon
(b)a brief chronology listing significant events that are relevant to the issues to be determined by the Court
(c)in a parenting case, a summary of contentions as to section 60CC factors relied upon to satisfy the Court that it is the best interests of the child(ren) to make the orders sought
(d)in a property case:
·contributions claimed or contended for and the percentage-based adjustment on contributions contended for
·relevant s 75(2) / 90SF(3) factors and the percentage-based adjustment contended for and
·any further factors relevant to determining a ‘just and equitable’ division of property.
Joint Chronology
38.Not later than 7 days prior to the trial date the parties are to confer and thereafter forward to my Associate a joint chronology in Microsoft Word format setting out all agreed facts that the parties ask the Court to take into account.
List of Issues
39.Not later than 7 days prior to the trial date each party is to file and serve the other parties with a document setting out with precision what that party contends to be the issues in the proceedings.
Factual Findings
40.Not later than 7 days prior to the trial date each party is to file and serve the other parties with a document setting out with precision the factual findings that party will contend should be made by the Court and in relation to each factual finding there is to be referenced the paragraph number in the Affidavit and/or a precise reference to the document in the Annexures or Exhibits that supports the making of the factual finding.
Trial Plan
41.Not later than 48 hours prior to the trial date the parties are to confer and prepare a trial plan allowing for the matter to complete within the allocated time including submissions.
Notification to Superannuation Trustee
42.Each party seeking a superannuation splitting Order binding the trustee of an eligible superannuation fund shall no later than 28 days prior to the commencement of the trial, notify the trustee in writing of the terms of the order sought and the date of the commencement of the Trial and shall provide a copy of such notification to the Trial Judge on the first day of the trial.
Tender Bundles
43.The parties’ legal representatives only and, if applicable, the Independent Children’s Lawyer are to photocopy all documents produced on subpoena to which access has been granted in the proceedings for the purposes of each preparing a proposed tender bundle. The tender bundle is to comprise all documents that the party or Independent Children’s Lawyer propose to tender into evidence or put to a witness in cross-examination. The tender bundle is to be bound, indexed and paginated and provided to each of the parties, to the Independent Children’s Lawyer and my Associate in hard copy not less than two business days prior to the commencement of the hearing.
For the purposes of this direction the provision of Rule 6.37 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 as to documents comprising child welfare records, criminal records, medical records or police records shall not apply.
Photocopies of any documents referred to above shall be retained in the possession of a parties’ legal representative and Independent Children’s Lawyer at all times, not be otherwise disseminated or distributed in any manner other than for the purposes of the proceedings and at the conclusion of proceedings be destroyed by the legal practitioner, and Independent Children’s Lawyer or returned to the Registry.
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 the pseudonym Hawken & Hawken has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
In this matter, the applicant mother (“the mother”) seeks interim orders that she be permitted to remove the children from Australia so that they can live in Country E. She proposes that the father have face time and phone calls with the children and that she will return the children to Australia in the Country E summer holidays for a minimum of 21 days so that the respondent father (“the father”) can spend supervised overnight time with the children.
Notwithstanding such a position in relation to supervised overnight time, the mother’s counsel advised that her alternate position if the children were not permitted to go to Country E was supervised time during the day each weekend. It was not proposed that it include overnight time.
The father in his Case Outline sought orders that the children remain in Australia and spend equal time with each parent on what he described as a week on week off basis.
The Independent Children’s Lawyer (“the ICL”) proposed that the children live with the mother, spend supervised time with the father, and that a regime of testing for alcohol consumption be implemented. The ICL proposed that the requirement for supervision be lifted upon the father providing two negative hair follicle tests and confirmation of compliance with a treatment regime.
Upon commencement of the hearing, the parties were largely in agreement with the ICL’s proposals in the event that the children remained in Australia, save that the mother did not agree to the father’s time moving to unsupervised and overnight.
Documents relied upon
The mother relied upon the following documents:
(1)Initiating Application filed 19 January 2022;
(2)Affidavit of mother filed 7 July 2022;
(3)Affidavit of Mr F filed 7 July 2022;
(4)Affidavit of Ms G filed 7 July 2022;
(5)Tender Bundle; and
(6)Case Outline document.
The father relied upon the following documents:
(1)Response to Initiating Application filed 10 March 2022;
(2)Affidavit of father filed 7 July 2022;
(3)Affidavit of Ms C filed 7 July 2022;
(4)Affidavit of Mr H filed 7 July 2022;
(5)Affidavit of Ms J filed 7 July 2022;
(6)Affidavit of Ms K filed 7 July 2022;
(7)Affidavit of Ms L filed 7 July 2022;
(8)Tender Bundle; and
(9)Case Outline document.
The ICL provided a Case Outline and a comprehensive Minute of Orders.
All parties referenced a Child Impact Report dated 8 July 2022.
Background facts
The father was born in Australia and is 55 years old.
The mother was born in Country E and is an Australian permanent resident. She is 44 years old.
The parties commenced cohabitation in or about mid-2006 and were married in 2010.
There are two children of their relationship, X born in 2012 and currently aged 9 years, and Y born in 2014 and currently aged 7 years.
The children are Australian and Country E citizens.
The children have lived all of their life in Australia but have spent holidays with their mother’s family in Country E.
On 10 September 2021, the mother and children travelled to Country E for a holiday with an intended return date of 6 January 2022. They did so with the consent of the father.
On or about 31 December 2021, the mother advised the father that she would not return to Australia with the children in accordance with the parties’ prior agreement to return by 6 January 2022. Such action was unilateral.
The father says that upon hearing the children were not returning, he had a mental breakdown and spent five days in Z hospital.
On 17 January 2022, the mother commenced proceedings in this Court seeking interim and final parenting orders that, if granted, would permit her to remain with the children in Country E.
On 16 February 2022, the father made an application under reg 11(1) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) to the Australian Central Authority for return of the children to Australia pursuant to the Convention on the Civil Aspects of International Child Abduction, which entered into force between Australia and Country E on 1 December 1990.
On 10 March 2022, the father filed a Response seeking that the children live with him.
On 15 March 2022, the mother filed her application seeking an anti-suit injunction. The mother sought orders that the father:
2. … do all things and sign all documents to discontinue the proceedings lodged with the Australian Central and [Country E] Central Authorities reference 22/2374 for the return of [X] [(“X”)] and [Y] [(“Y”)] to Australia.
The hearing of the mother’s application was listed on 10 June 2022.
The father opposed the mother’s application. The mother’s application was not supported by the ICL
During the course of the hearing, the mother’s counsel was asked whether the mother would return the children to Australia if the Court could allocate an early hearing date of her application that the children live in Country E pending a final hearing.
Ultimately, consent orders were made that provided for the children’s return and an interim hearing on 13 July 2022.
The mother returned the children to Australia on or around 28 June 2022.
Due to their return, the Hague proceedings were discontinued.
Upon the children’s return to Australia, they commenced spending supervised time with their father on a day only basis.
The mother in her affidavit identifies allegations of significant family violence. That violence included the father slapping, kicking, punching, elbowing, pulling the children’s hair, and swearing at the children, including saying words such as “I will kill you” and “I will hurt you” (mother’s affidavit, paragraph 8). The mother says the father has repeatedly said to her that “the kids needs a good beating” (mother’s affidavit, paragraph 10).
The mother’s says that following the first lockdown in 2020, there was an increase in verbal and physical abuse such that she was afraid to leave the children in the father’s sole care. The mother identifies specific incidents of physical violence and verbal abuse perpetrated on the children in August and September 2021. The mother reports that the children would say things to her in relation to the father such as “I was scared to death”, “I don’t want to be here” and “[d]ad does not care about me” (mother’s affidavit, paragraph 35).
The mother contends that the father has a long history of mental health issues, that the father denies or blames other people for his shortcomings, alludes to the father being less than frank with his current psychologist, and contends that the father has abused alcohol and that he becomes more aggressive and quicker to anger when affected by alcohol.
The mother says that she observed prior to the children travelling to Country E that X had low self-esteem, was self-conscious, easily embarrassed, and that Y was swearing and becoming increasingly aggressive. The mother says that both children had become uncontrollably angry and would swear at times. It is presumed that the mother would contend that the children were mimicking their father’s behaviour. The mother contends that after their arrival in Country E, she noticed significant changes in the children such that they became more confident, were able to better communicate, and that their violent outbursts reduced considerably.
The mother contends that she reported her allegations in relation to the father’s behaviour to work colleagues, and a witness in the mother’s case attests to the mother informing him in August 2021 in words to the following effect:
3. … “The children and I are being subjected to domestic violence by [Mr Hawken]…
(Affidavit of Mr F filed 7 July 2022, paragraph 3)
A witness in the mother’s case, Ms G, gives evidence of having observed the father lose his temper with Y in or about January 2021, when she says that the father reacted aggressively to Y’s inability to complete construction of a Lego police car. The import of the witness’ evidence is that it was a completely inappropriate response which left the child upset and distressed.
The father in his affidavit identifies that he has had a long history of depression and anxiety dating back to since the parties were married. He identifies that he is currently receiving assistance for his depression and anxiety from his psychologist, Ms C. The father denies the mother’s allegations that he has exposed the children to physical or psychological harm and asserts the following in his affidavit:
71.There has been no family violence in [Ms Hawken’s] and my relationship. I have never neglected nor caused harm to the children or [Ms Hawken], and I refute all allegations that I have ever done anything to harm [Ms Hawken] and/or the children. I note there has never been any police or child protective services involvement in our family.
72.…
72.12.Paragraph 48: I have never hit nor threatened to hit the children. I do say that I have used intemperate language mostly under my breath out of frustration. I have said “Fuck, fucking idiot, moron and half-wit”. I may have said that somebody needs to have their skull cracked when referring to something completely unrelated, but not to the children. I regret using intemperate language in front of the children.
72.13.Paragraph 49: I’ve never threated “to crack my daughter’s skull” nor have I threated to kill the children.
72.14. Paragraph 52: I deny using the words as alleged although I may have used the term “you little bastard” when [Y] hit [X]. I regret using those words. I deny using the other words alleged.
72.15.Paragraph 53-61: I have never hit [Y] nor for that matter anyone and deny the allegations or use of the words alleged in these paragraphs of [Ms Hawken]’s] Affidavit.
…
72.17. Paragraph 67: I may have said the word “retard” at some stage and regret using that language.
The father’s psychologist has prepared a report in which she identifies the following:
[Mr Hawken] has proved to me to be an intelligent, insightful and determined individual who is now much more his original self than in the past six years. The very difficult and stressful situation between himself and his estranged wife and the future of his family has caused [Mr Hawken] many sleepless nights and regret about not taking action over his mental health issues earlier. He now has to accept the terms of custody and the children’s location that the Court sets.
(Affidavit of [Ms C], Annexure A)
His psychologist also says:
There are no objective clinical concerns around [Mr Hawken’s] capacity for shared care of his two children. … That being said, it is my opinion that he is capable and properly motivated in his desire to see and care for his children to put their needs first ...
(Affidavit of [Ms C], Annexure A)
I accept the mother’s counsel’s submission that there are limitations on the weight I can give to such conclusions in circumstances where her opinion is based on the father’s self-reporting and in the absence of input from the mother.
The mother annexes an email from the father dated 8 January 2022, which seems to indicate that the father has been in a degree of emotional torment and turmoil for some time. In that email, the father says words to the following effect:
I cannot find the words to write but I will try anyway.
I am ... sorry:
I have been just about the most appalling husband that has ever lived
…
For the last 9 years I have been in a darkened room with the only light provided by my beautiful children and my ever supporting wife. While I have sort answers & solutions, I have not been able to see it through for many reasons not the least of which are the terror & pain I go through at therapy and being a burden on our finances.
The last year has been the worst. And the last week has been the worst of the worst. I have been in a room with the most damaged creatures, some of whom are beautiful, some of whom have turned evil, all of whom are hurt. I can hear them yelling in the night. I have been very scared.
With the help of [Nurse M], [Nurse N], [Dr P] & [Dr Q], I have commenced the long road back. It has been very painful and definitely frightening BUT this time I am COMMITTED.
I have been discharged from hospital.
I have sort & will receive further psychological treatment (no matter the fear) not only for me but to better equip myself for the needs of my wife and children.
(As per the original)
(Mother’s affidavit, Annexure C)
The Child Impact Report states the following:
3.[Ms Hawken] is ultimately proposing that she and the children be permitted to relocate to [Country E] and that [Mr Hawken] either relocate also or else [Mr Hawken] travel to [Country E] to spend time with the children. In the interim, she is open to [Mr Hawken] spending time with the children, provided that it is supervised by an agreed person. [Mr Hawken] is seeking that the children remain residing in Australia and travel to [Country E] for holidays. He is happy to spend informally supervised time with [Y] and [X] for a period to demonstrate that he is no risk to the children and that he has been consistently and proactively managing him mental health. He is hoping that this would transition to unsupervised time and then gradually increase to an arrangement whereby the children spend significant and substantial time with him.
…
6.There are disputed accounts of the primary carer of the children. [Mr Hawken] insisted that as [Ms Hawken] worked, he was primary carer of the children, particularly during home schooling. He reported being proactively involved in arranging playdates and taking them to the park. He reported having reached out to friends to arrange playdates to assist with the children feeling more settled before school recommences. [Ms Hawken] claimed that she was the primary carer and that [Mr Hawken’s] involvement was minimal. She said that he often reported that he “couldn’t be bothered” when she asked for him to do an activity with the children, instead preferring to watch TV. She claimed that [X] in particular felt that her father made minimal effort with her and that [Mr Hawken] spoke of having difficulties connecting with [X]. [Mr Hawken] reported that, in 2015, during a trip to [Country E], the maternal grandmother made a comment about him being a paedophile, as [X] had sat on his knee without clothing to eat her lunch. He advised that there was no basis for this comment and she later apologised but that this impacted his relationship with [X] at times and also impacted him not wanting to return to [Country E].
…
8.In interview, [X] presented as shy initially but slowly became more conversational, particularly as when animals, horses, horse-riding and other interest were discussed. [X] said that [B School] was “okay”, that it has a nice oval but that the school in [Country E] was nicer, with nicer teachers who helped often. She also referred to making very close friends in [Country E], but acknowledged that she also has close friends in Australia. [X] identified both her Mum and Dad as good at arranging playdates or taking her and [Y] to the playground.
9.[Y] presented as a smiley and playful young boy, who readily engaged with the CCE and took much pleasure in demonstrating his [Country E] language ability. [Y] was firm that the children in his school in [Country E] was far nicer than his school in Australia, as he described the “kids” in [B School] as “mean” and “not allowing everyone play”. He also found the Maths and sports as better in [Country E]. Despite this he indicated that he has close friends in [Country E] and Australia.
10.Both [X] and [Y] identified their parents and each other as their most important people. As expected, the voiced that the other sibling could be annoying at times, for normal sibling things such as coming into their room and annoying them or taking their belongings. [Y] spoke of being happy to spend time with his father again and that he missed him when he lived in [Country E] and he wished they all lived together again. [Y] identified that if he had a magic wand all of them, including his father would live in [Country E].
11.While both [X] and [Y] spoke positively about both parents [Y] referred to not liking that his father swears often. [Y] advised that he never felt unsafe with either parent. [X] said that she felt unsafe with her father once, as he got “frustrated” (during home-schooling), was yelling, called them “idiots” and slapped them on the back. She spoke of her and [Y] going to hide in their mother’s yoga room. [X] spoke of wanting her father to stop yelling, slapping and using unkind words. When speaking of their parent’s relationship, both [X] and [Y] spoke of it not being friendly or nice which made them sad. [Y] described his father swearing at his mother, or putting on the TV when his mother told him not to. While [X] spoke of both parents yelling and having “different opinions”. She said that is hurt her when she heard her father say “mean things” to her mother and say that he should not have married her. Both [Y] and [X] advised that they were happy to see the father again and that they have really enjoyed their time with him.
…
17.Both parents agreed that the children would have been witness to verbal arguments and tension within the household in the later years of the marriage. [Ms Hawken] attributed this to [Mr Hawken’s] very poor and unmanaged mental health and his anger and aggression. [Mr Hawken] acknowledged that he has been “a terrible husband”, that his mental health was poor at times and that he is regretful for this but was adamant that he was a positive father for the children and was angry and aggressive.
…
20.[Ms Hawken] claimed that [Mr Hawken] hit, kicked, punched the children, was verbally abusive and intimidation and that it became worse as the children got older and became more defiant. [Ms Hawken] advised that [Mr Hawken] had no patience with the children and often called “idiots”, “retards” which severely impacted their confidence. She said that moving to [Country E] and having the time and space made her realising how traumatising living with [Mr Hawken] was for her and the children. She said that she would have serious concerns if [Mr Hawken’s] time was to become unsupervised as he has reportedly done much therapy and counselling to address his anger issues and he has never changed. She has little faith that he will change.
21.[Mr Hawken] was adamant that while he may have called some of their actions “dumb”, raised his voice and swore that he has never physically harmed the children and the allegations made by [Ms Hawken] “sicken” him. He spoke of home-schooling being a particularly stressful period as he was attempting to ensure that the children, cooped up in the house, did not disturb [Ms Hawken], who was working from home but that he never resorted to physical discipline instead using time outs.
…
24.[Ms Hawken] claimed that [Mr Hawken] consumed alcohol to excess and that this further impacted his anger and his mental health. [Mr Hawken] denied drinking it to excess but agreed that it was impacting his mental health and that is why he has now ceased.
…
31.[Ms Hawken] spoke of feeling helpless to reassure the children with their distress of having to return to Australia, explaining that they experience her as “always finding a way” to resolve worries and concerns. In [Ms Hawken’s] opinion, [Mr Hawken] could relocate to [Country E] if he was putting the children’s needs and wellbeing first. She emphasised that he has lived there previously and speaks fluent [Country E language] and that there are many employment opportunities that he could engage in.
Applicable law
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”), I set out in short form my reasons.
This is an interim hearing and there has been no cross-examination. By virtue of that fact, I am unable to make findings in relation to the disputed facts of which there are many.
Notwithstanding such indisputable proposition, the mother’s counsel put some submissions to me to the effect that I could draw some conclusion from inconsistent assertions that would permit me to presumably reach some conclusion on the disputed allegations. I am clearly unable to do so and will not do so. These are matters for a final hearing. The best I can do is resolve the matter on the undisputed facts and/or objective material.
However, just because I am unable to determine or resolve disputed facts or assertions does not mean that I ignore allegations of risk.
In Marvel & Marvel (No. 2) (2010) 43 FamLR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
88. In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at [100] their Honours amplified their comments and said:
100. The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Adamson & Adamson [2018] FamCA 523 (“Adamson”), McClelland J (as he then was) observed:
50.It is to be observed that that reference in SS v AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
Parenting proceedings are governed by Pt VII of the Act.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII.
In determining what is in a child’s best interests, the Court must consider the matters set out in s 60CC of the Act. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The Full Court in Goode & Goode (2006) FLC 93-286 (“Goode”) set out the procedural steps in an interim application, noting that in interim proceedings there may be little uncontested evidence. Consistent with the guidelines outlined in Goode and to the extent relevant and necessary, I have in these reasons identified the competing proposals of the parties, the issues in dispute, and the contested facts.
I also note the observations of Judge Brown in Atwill & Marden [2018] FCCA 1401 (Atwill & Marden”), which are apposite to the orders that the mother seeks on an interim basis, namely the relocation of the children to Country E against the background of quite significant upheaval.
Her Honour observed:
90.Two of the principles underpinning Part VII of the Act [section 60B(2) encourage parents to share duties and responsibilities for their children and to agree about future parenting arrangements for them.
91.For reasons arising from these principles, amongst other factors, courts applying Part VII are discouraging of parents, who take unilateral actions in respect of arrangements for their children, except in circumstances of significant emergency.
92.This is particularly so in cases of relocation, which invariably have implications for both the quality and quantity of relationship the parent left behind can have with the children affected by the other parent’s move.
93.The High Court has indicated that cases involving relocation require delicate and careful analysis of all the pros and cons, in respect of the move, from the individual perspectives of all concerned, including the children. For the reasons outlined already, such a degree of analysis is not possible at the interim stage.
94.In Morgan & Miles, which was a case which arose after the shared parental responsibility amendments were implemented, Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“It is highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined 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. It further appears to me that the comments of Warnick J in C and S remain apt and relevant to determination of these cases.”
95. The comments, of Warnick J referred to, were as follows:
“In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.”
(Footnotes omitted)
With the greatest of respect to her Honour, I agree with those observations.
Primary and additional considerations
In applying the primary considerations, the benefit to the children of having a meaningful relationship with both of the parents is subservient to the need to protect the children from the risks and harms identified in the subsection.
A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright (2007) 37 FamLR 518 at [26], cited with approval by the Full Court in Sigley & Evor (2011) 44 FamLR 439).
Both parties would contend that what they propose meets the criteria of a meaningful relationship with the other parent. I am not satisfied that what the mother proposes by her application for return to Country E does.
As stated above, I am required when applying the primary considerations to give greater weight to the need to protect the child from risk and harm than to the benefit to the child of having a meaningful relationship with both parents.
As I have referred to above, the mother raises very serious allegations of family violence. Most of the mother’s allegations are denied by the father. I am, within the confines of this interim hearing, unable to resolve the disputed allegations of fact. I place considerable weight on the observations of the Child Court Expert, where she recorded:
34. Due to the nature of the allegations made by [Ms Hawken], it may be appropriate that [X] and [Y] spend supervised time with [Mr Hawken] for a period. Both parents seemed agreeable to this. [Mr Hawken] hopes to arrange this to be informally supervised and the CCE encouraged him to consider what arrangement may be the most feasible to confirm family and friends to supervise for a period. It is important that the children are not expecting certain arrangements and they are cancelled last minute as this may cause emotional distress and a sense of rejection, even if it is outside of [Mr Hawken’s] control.
35. It is also crucial that neither parent (or their family and friends) denigrates the other as this has implications for the children’s emotional wellbeing, sense of self and identity.
36. Due to the allegations raised it is likely that the Court will require information regarding [Mr Hawken’s] mental health, his diagnosis, treatment plan and his compliance.
37. It may also be reassuring for [Ms Hawken] and the Court to confirm that [Mr Hawken] is refraining from alcohol.
38. It is important to note that supervised time is a short term intervention to support children’s relationship with a parent while further information is being gather, assessments and interventions are being undertaken. If [Y] and [X’s] time was to transition to unsupervise this should be in a slow and gradual manner to offer them the greatest sense of security.
Exhibit 1 (being the tender bundles relied upon by both parties) identifies that in 2016, the father was a described as a very angry man “given to passive aggressive undertones”. This may, on one view, sit somewhat uncomfortably with the father’s denials. I cannot ignore the allegations of risk. There is clearly a risk. I need to act cautiously, and orders need to be made to address the issues of risk that have been identified. The orders I propose address that balance.
In determining what is in the best interests of the child, I will now consider the additional considerations as far as they are relevant.
In a report prepared for the Hague proceedings and attached to the mother’s affidavit, it records the following in relation to X:
In response to the question about where she would rather live if all members of the family were also there, she responded after some consideration:
I don't know what I want. My friends are little better here, and I can ride horses. In Australia, however, there are 3 guinea pigs and a dog called [T].
[X] would definitely like to see her father more often. She can also imagine visiting him on her own if someone were to accompany her on the flight to Australia.
In response to the question on whether [X] knows why her mother would like to remain here:
I think it's because her brother is sick. And my father was also aggressive. But that was only once or twice. He hit me and [Y] on the bottom or on the back. That wasn't fun, but it wasn't very hard, I am not scared of him though.
Her mother was also angry once and shouted loudly.
(Mother’s affidavit, Annexure F)
In relation Y, it records:
In response to the question on where he would like to live in future;
I like it a bit better here. But I want to visit my father often.
In response to the question on whether there is anything he would like from his parents:
…
It would be nice if father came to visit. If father were to come visit him here, he would like to play football or tennis with him or go to the park.
(Mother’s affidavit, Annexure F)
What is apparent from what the children report is that they wanted to see their father, that it would appear that they missed him, and in the case of X that she was not scared of him.
The mother placed significant weight on what she said was the children’s view about wanting to live in Country E. I observe that the Child Court Expert recorded:
29. At nearly 10 and 7, [Y] and [X] do not have the emotional maturity to fully comprehend the long term impacts of residing in one country over another in their relationship with [Mr Hawken]. However, it is important to note that they thoroughly enjoyed their time in [Country E] and they may struggle to readjust. However, they make equally find that not residing in a household filled with tension and arguments makes Australia a nicer place to reside also.
Given this observation, their age and level of maturity, I place little weight on their views.
I accept that the children have a relationship with each of their parents and their extended families. Clearly, the children will miss their relationship with the mother’s extended family in Country E. Likewise, they would miss the opportunity to experience the relationship with their father and the father’s extended family in Australia if I ordered a relocation at this stage.
Section 60CC(3)(c) requires the Court to consider the extent to which each of the parties has taken or failed to take the opportunity to participate in making decisions about long-term issues in relation to the children. In this respect, I note that the mother has acted unilaterally in withholding the children in Country E. In this respect, I note the observations of the now Deputy Chief Justice McClelland in Adamson, where his Honour observed:
98.As I will discuss, while the Act requires the focus of these proceedings to be on the best interests of the children, authority suggests that a relevant factor to also consider is that a parent should not make a unilateral decision to significantly change the children’s circumstances in a situation where there is a dispute between the parties as to what parenting arrangements are in the long term best interests of the children.
The mother’s unilateral actions were not in the children’s best interests.
Section 60CC(3)(d) of the Act requires the Court to consider the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the child’s parents. In that respect, the mother’s proposal is that the children would be separated from their father by her application to relocate to Country E. I note the mother’s evidence where she says the following:
122. Relocating to [Country E] would significantly improve mine and the children's financial position. As outlined, we are entitled to a monthly payment of [Country E local currency] 438 around $665 child support payment that is independent of my level of income. This is particularly of importance since [Mr Hawken] is on minimal wages and unlikely to make any financial contribution for the children's expenses or if so, it would be minimal.
123. Rent and housing is cheaper in [Country E] compared to Australian and although prices have risen, groceries are also still more affordable.
124. There are many jobs available with significantly better pay for me. After sacrificing my career in order to migrate to Australia and to be there for [Mr Hawken] and the children, I have forgone job opportunities for positions and higher. [Mr Hawken] was keen for me to apply for those but I did not as knew I was unable to manage everything with the little support I had from [Mr Hawken].
125. In [Country E], I would have the support network and have already been contacted in relation to various available roles. The current job market in [Country E] is favourable. I would be able to return to work as a [professional in a private company], as consultant/advisor for companies as well as many senior public service roles. Pay varies depending on the type of role. For example, as a [professional] with my work experience the average pay is around $200,000, which is more compared to my current pay.
126. I have been invited for an interview and assessment centre for a [position as a professional] in [S Organisation] on 23 August 2022. This would be a role that is open to part time work, whilst also providing financial security and superannuation with guaranteed monthly payments. I had lengthy maternity leave interruptions and only worked part time since returning to work following [X's] birth in 2013. This type of job would significantly improve my financial position and provide retirement security.
Clearly there are significant benefits to the mother of a relocation, which she would say ameliorates the impact of any separation of the children and would be a change that was to their benefit. At this stage, in the absence of more fulsome evidence, I am unable, in the interests of the children, to make a finding that it would on balance be beneficial to the children and in their best interests. In that respect, I note the observations of the Child Court Expert as follows:
41.Due to this being an international relocation matter it is likely that further assessment will be required such as a family report.
The children would also be separated from their father’s extended family. I note the observations of the Child Court Expert, where she records:
27. [X] and [Y], as school age children, are at a developmental stage where structure, routine and socialisation is central to their needs. Both are at ages where children, particularly in high conflict families, can feel very overwhelmed, emotionally constricted and can be vulnerable to emotional splitting. As mentioned, the parent’s focus should be on shielding the children from conflict and reassuring them that their parents are working together to work out the best plan for them. The parents must be commended how well they have managed the return to Australia and their child focus on arranging informal and flexible supervised time, to meet the children’s needs of wanting to see their father. They have communicated reasonable well. To ensure that they establish a workable and safe co-parenting relationship it may be helpful if they meaningfully engaged in parenting orders program (individual appointments), addressed the conflict in their relationship, established positive communication and conflict resolution strategies and developed guidelines and expectations to assist them to focus on the children, this would likely have considerable positive impact on [Y] and [X ]to observe their parents working collaboratively to parent them.
28. At present, the focus of the parents should be on creating certainty, routine and stability for the children, this includes settling them back into school and extra-curricular activities as well as identified routine time with [Mr Hawken].
I accept the observations of the Child Court Expert. I am of the view that at this stage a separation of the children from their father of the duration proposed by the mother is contrary to their best interests. What they need at this stage is stability and the routine of a regular time arrangement with their father.
Section 60CC(3)(e) of the Act requires the Court to consider the practical difficulty and expense of maintaining time and communicating with their parents. If the children were to return to Country E, then there will be practical difficulties in the maintenance of a physical relationship between the children and their father. It was not suggested that there are any such limitations if the children are in Australia. Another practical difficulty and expense includes that the father is employed in health, earning $22 per hour, working 4 to 5 days per week and living in rented accommodation. I note the financial offer the mother makes about the rental income of the home that would be available to fund visits to Country E. I also note that the mother says that the father could work and obtain a visa in Country E. I am not satisfied that the evidence the mother gives is sufficient for me to conclude that the father could live in Country E should he even wish to do so. The mother produces no documents to support her contention and relies entirely upon an unnamed person in “the migration office” as the source of her information. While I accept that s 75 of the Evidence Act 1995 (Cth) does not apply to parenting proceedings and that these are interlocutory proceedings, a statement “I have called the migration office and they have informed me” is of no probative value (mother’s affidavit, paragraph 149).
I am required to consider s 60CC(3)(f) and the capacity of each of the parents to provide for the needs of their children. The mother contends, by virtue of the various allegations of risk, that the father has a limited capacity to provide for the children’s needs. I note that the Child Court Expert says:
39. The parents have to co-parent for another 11 years and, as such, they would benefit from attending a parenting orders program, or similar, to assist them to communicate their worries in a safe environment, identify positive communication strategies, reduce conflict and identify roles and responsibilities as they progress forward.
40. [X] and [Y] may benefit from therapeutic intervention, such as the [BB Program], or similar, regarding the challenges associated with parents in conflict and parental separation and to learn how to identify, manage and communicate emotions effectively to both parents.
This could only be of a positive benefit to the children.
Section 60CC(3)(i) requires the Court to consider the attitude to the children and the parental responsibilities of each of the parties. I refer to the mother’s allegations made earlier. If they were established, then they would reflect poorly on the father’s parenting capacity. I also take into account the mother’s attitude to the responsibility of ensuring that the children maintain a relationship with their father and, in particular, note the father’s submission in relation to the mother’s unilateral actions.
Of considerable focus for the purposes of these interim proceedings is a consideration of the factors identified in s 60CC(3)(f) and s 60CC(3)(i), calling into focus the insight and capacity of the parents to place the children’s needs above their own.
I have significant concerns about the insight of each of the parents.
In relation to the allegations of family violence, I take these matters into account and note that the mother makes very serious allegations of family violence.
The mother’s counsel correctly identified that the mother does not have to provide compelling reasons to relocate the residence of the children. I accept that submission.
He also made a valid submission that in circumstances where it is that at least for a period of time on the father’s case she will be the children’s primary carer, that her legitimate expectations as to where she wishes to live will be constrained by a refusal of her application. In that regard, I adopt with respect the observations of the now Deputy Chief Justice in Adamson, where he recorded:
105.While the orders sought by the father seek the return of the children from E Town to Sydney, the reality is that the mother, as the children’s primary carer, will be compelled to return with them. It is a serious matter for the Court to make an order that effectively restrains a person’s freedom of movement. In that respect, I have had regard to the decisions of the Full Court in Sampson & Hartnett (No 10) [2007] FamCA 1365 and Cales & Cales [2010] FamCAFC 237.
106.In that context, in U v U [2002] HCA 36 at [142], Kirby J observed:
The burden of such injustices will ordinarily fall, as here, on the wife. It will be she, not the husband, who will usually be confined, in effect, in her personal movements, emotional environment, employment opportunities and chances of remarriage, repartnering and reparenting. Effectively, as here, it is she who will be controlled by court orders that require her to live, and make the most of her life, in physical proximity to the husband's whereabouts. In this way, inconvenience to the husband is minimised. But the effect on the wife may be profound.
107.In terms of the potential impact on the children, in AMS v AIF [1999] HCA 26 at [145], Kirby J further observed that:
One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
108.The Full Court in Bolitho & Cohen [2005] FamCA 458 confirmed that the proper approach to be adopted in relocation cases, as held by the High Court in U v U, is one involving the:
… weighing of competing proposals, having regard to relevant [s 60CC] factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
Recognising as I do the above matters, the orders I propose, including the allocation of final hearing dates, is an attempt to ameliorate that imposition. It does not in any way amount to a pre-determination of the relief the mother seeks on a final basis.
Conclusion
I note that Kent J in Heath v Hemming (No2) [2011] FamCA 749 observed as follows:
101.Whilst the statutory framework does not deal differently or specifically with cases involving a proposed relocation from other parenting cases, such cases attract the description of “relocation cases” because they bring into sharp focus the central issue of balancing statutory imperatives concerning children’s best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests” considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
His Honour’s observations, albeit in a final hearing, are apposite to the mother’s current application.
At this stage, I am not satisfied that the children’s best interests are served by being returned to Country E and thus balancing all the considerations, including the legitimate right of the mother to choose to live in Country E, means that I decline to grant the mother’s application for interim relocation to Country E. While I accept the mother asserts that it is in the children’s best interests, at this stage, to accede to that application, I am not convinced. It would only invite more instability and uncertainty into their lives when there is to be a further hearing to address their living arrangements on a final basis that could possibly see them remaining in Australia.
I accept the recommendation of the Child Court Expert that a more fulsome report is required. I am of the view that the determination of such an application at an abridged interim hearing is not in the best interests of these children, coming as it does against the backdrop of much upheaval that was unilaterally imposed and in my view unnecessary. The children need the structure of regular reoccurring time with both of their parents. The mother’s application is the antithesis of such a position. I repeat and adopt the observations of Judge Brown in Atwill & Marden that I have referred to earlier, namely that:
93. The High Court has indicated that cases involving relocation require delicate and careful analysis of all the pros and cons, in respect of the move, from the individual perspectives of all concerned, including the children. …such a degree of analysis is not possible at the interim stage.
I turn now to consider what should happen in Australia.
None of the parties proposed the making of an order for parental responsibility.
In this matter, given the allegations of risk, an extremely poor co-parenting relationship and the high level of distrust, I find that it is not in the best interests of the children to make an order for equal shared parental responsibility. I am of the view, that at this stage, it is not in the interests of the children to make any order allocating parental responsibility. I note the Child Court Expert observed as follows:
33. Both parents should be commended on their behaviour, cooperation and child focused approach since the children have returned to Australia, particularly in relation to the facilitation of time with [Mr Hawken]. …
In those circumstances, the mandate in s 65DAA is addressed.
I note the father did not oppose an order that the children live with the mother and I regard such an order as appropriate.
As to the time arrangements with the father, I place considerable weight on the observations of the Child Court Expert. I repeat what I have referred to earlier, where she recorded:
34. Due to the nature of the allegations made by [Ms Hawken], it may be appropriate that [X] and [Y] spend supervised time with [Mr Hawken] for a period. Both parents seemed agreeable to this. [Mr Hawken] hopes to arrange this to be informally supervised and the CCE encouraged him to consider what arrangement may be the most feasible to confirm family and friends to supervise for a period. It is important that the children are not expecting certain arrangements and they are cancelled last minute as this may cause emotional distress and a sense of rejection, even if it is outside of [Mr Hawken’s] control.
35. It is also crucial that neither parent (or their family and friends) denigrates the other as this has implications for the children’s emotional wellbeing, sense of self and identity.
36. Due to the allegations raised it is likely that the Court will require information regarding [Mr Hawken’s] mental health, his diagnosis, treatment plan and his compliance.
37. It may also be reassuring for [Ms Hawken] and the Court to confirm that [Mr Hawken] is refraining from alcohol.
38. It is important to note that supervised time is a short term intervention to support children’s relationship with a parent while further information is being gather, assessments and interventions are being undertaken. If [Y] and [X’s] time was to transition to unsupervise this should be in a slow and gradual manner to offer them the greatest sense of security.
I note she also observed:
33. … It would be important for [X] and [Y], given the upheaval they have experienced in recent times, that there is some structure to the time that they spend with their father. It also may be that, an ad hoc arrangement may give rise to unnecessary conflict and tension between the parents that will inadvertently impact [Y] and [X]. The CCE suggested that both parents consider what may be a feasible and positive reoccurring arrangement, in the immediate and there be clear and firm Orders to support this arrangement.
It follows from my findings as to risk and the recommendations of the Child Court Expert that the children should spend supervised time with their father. The issue raised by the proposals of the father and ICL is when supervision should be lifted.
The mother proposed that it should remain indefinitely, while the father and the ICL said it effectively should be lifted after two negative hair follicle tests and a series of reports which would at the earliest be sometime after 21 October 2022.
I am of the view that a longer period is required consistent with the recommendations of the Court Child Expert at paragraph 38 of her report that it be reintroduced slowly and gradually. I therefore will require there to be three negative hair follicle tests, putting the earliest that supervision is lifted to after 21 January 2023. I otherwise propose to make the orders as sought by the ICL and will make orders for the preparation of the matter for trial before me for four days commencing on 11 April 2023.
I otherwise dismiss each party’s interim applications.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 18 July 2022
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