HENRY & HANCOCK

[2016] FCCA 2442

FEDERAL CIRCUIT COURT OF AUSTRALIA

HENRY & HANCOCK [2016] FCCA 2442

Catchwords:
FAMILY LAW – Interim parenting arrangements for children aged 5 & 2 – unilateral relocation of children from Adelaide to Sydney by mother – father seeks return of children to metropolitan area of Adelaide – application by mother for change of venue and for children to remain in her care in Sydney area – father alleges mother is mentally unstable and has been abusive towards children – mother alleges father has been violent towards her and has exposed children to family violence – parties in dispute as to previous care arrangements for children – nature of interim hearing – best interests.

Legislation:

Family Law Act 1975, ss.4AB; 4(1); 60CA; 60CC; 60B; 61DA; 65DAA; 67L; 67Z; 67ZBA; 67ABB, 68B; 69ZW

Cases cited:
Cowling v Cowling (1998) FLC 92-801
Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
AMS & AIF (1999) FLC 92,852
Morgan & Miles [2007] FamCA 1230
C & S [1998] FamCA 66

Applicant: MR HENRY

Respondent: MS HANCOCK

File Number: ADC 1295 of 2016

Judgment of: Judge Brown

Hearing date: 13 September 2016

Date of Last Submission: 13 September 2016

Delivered at: Parramatta

Delivered on: 23 September 2016

REPRESENTATION

Counsel for the Applicant: Mr Harley

Solicitors for the Applicant: Dixon Gallasch Pty Ltd

Counsel for the Respondent: Ms Carr

Solicitors for the Respondent: Legal Aid NSW Bankstown Family Law

UNTIL FURTHER OR OTHER ORDER

1. Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer is appointed for X born (omitted) 2011 and Y born (omitted) 2013 and request the Legal Aid Commission of NSW to provide such representation.

2. The parties are to provide to the Independent Children’s Lawyer, within 48 hours of receiving notice of their appointment, all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

3. The Applicant and Respondent are to provide to the Independent Children’s Lawyer immediately upon notification of their appointment, a copy of any subpoena issued in the proceedings.

4. The matter be transferred to the Federal Circuit Court of Australia in Parramatta on 15 November 2016 at 9:30am.

5. The mother have sole parental responsibility for the children.

6. The children live with the mother in the Sydney metropolitan area.

7. The children spend no time and have no communication with the father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

ADC 1295 of 2016

MR HENRY

Applicant

And

MS HANCOCK

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Henry “the father” and Ms Hancock “the mother” are the parents of X born (omitted) 2011 and Y born (omitted) 2013.  These reasons relate to interim arrangements for the care of the two children, in difficult and conflicted circumstances. 

2. The father commenced these proceedings on 11 April 2016, in the Adelaide registry, seeking the following orders:

   ·An urgent listing;

   ·A recovery order, pursuant to section 67Q of the Family Law Act 1975[1] in respect of the children;

   ·A Commonwealth Information Order pursuant to section 67N of the Act, directed to Centrelink;

   ·The return of the children to live in the (omitted) suburbs of Adelaide;

   ·The children live with the father pending final hearing;

   ·The children spend time, with the mother, as determined by the court; and

   ·A series of orders be made to prevent the children being removed from Australia.

   [1]  Hereinafter referred to as the Act

3. Both the father and mother are from (country omitted), where they married in early 2008.  The father came to Australia in 2011 and has apparently been granted a protection visa.  I have not been provided with any details of this visa, particularly the grounds on which it was granted.  He is a permanent resident of Australia.

4. The mother and X came to Australia in 2012 to be reunited with the father.  They were each granted bridging visas by the Australian authorities.  Again, I have not been provided with details of these visas.  Y was born in Australia. 

5. The father has two children from an earlier relationship.  They are A born (omitted) 2002 and B born (omitted) 2007.  A and B were both born in (country omitted) and came to this country in conjunction with their father.  It is common ground between the parties that they lived as a family with all four children in Adelaide from 2012 onwards. 

6. During the course of the interim hearing, I was informed that the father’s first language is (language omitted); whilst the mother’s first language is (language omitted).  I was also informed that the father is a (religion omitted); whilst the mother is a (religion omitted).  I was not informed whether these distinctions were significant in the case. 

7. There is also an age difference between the parties.  The father was born in (omitted) of 1973; whilst the mother was born in (omitted) of 1989.  I provide these details, at this stage, to indicate that this is likely to be a case of some cultural complexity. 

8. In addition, I am unaware as to whether the circumstances which led to each of the parties to come to this country has ongoing implications for their psychological wellbeing and, if so, to what degree. 

9. A recovery order is an order authorising and directing a nominated person usually a police officer, to locate and return a child to a parent.  It is a significant order to make and should only be done if the court considers that is in the best interests of the child concerned to do so [see section 67V]. 

10. A commonwealth information order is an order of the court, directed to a commonwealth instrumentality, to provide information to the court about the whereabouts of a child which is available to the instrumentality concerned from its records. 

11. For obvious reasons, where a person who is the custodian of a child receives a commonwealth allowance, Centrelink is likely to have information about the whereabouts of any child in that person’s care. Again, the court should not make such a commonwealth information order, unless it is persuaded that it is in the best interests of the child concerned to do so [see section 67L].

12. It is implicit from the orders sought by the father that, at the time of his application, he was unaware of the exact whereabouts of X and Y but sought their compulsory return to his care.

13. It is common ground, between the parties, that they finally separated, on or around 22 January 2016.  The following day, the mother attended at the (omitted) Police Station and made a complaint that the father had assaulted her. 

14. Shortly thereafter, the Elizabeth Magistrates Court issued an interim intervention order preventing the father from being within 50 metres of the mother and assaulting, threatening, harassing or intimidating her.  This order was served upon the father.  He has opposed the order being made final but these proceedings have now apparently been discharged.

15. Between late January and the instigation of these proceedings, it is the father’s evidence that he had no exact knowledge of the whereabouts of the mother and X and Y, although he believed that they were somewhere in Sydney.  A and B remained in his care.

16. It is the father’s case, which the mother does not contradict, that he was not consulted about the children moving to Sydney and, if he had been consulted, he would not have agreed to the move.  He has not spent time with the children since January 2016, a period now over eight months in duration.

17. Accordingly, this case raises issues of what lawyers refer to as unilateral relocation.  That is, one parent has moved far away from the other parent concerned, with relevant children, so that future interactions between those children and the parent left behind are rendered extremely problematic. 

18. On 5 May 2016, the first return date of the father’s application, a commonwealth information order was made directing Centrelink to provide information about the whereabouts of X and Y.  In addition, injunctions were made restraining the removal of the children from Australia. 

19. The mother was served, with the father’s application, at an undisclosed address in Sydney on 18 June 2016.  On 21 July 2016, the mother filed a response and an affidavit in support.  In her response, the mother sought the following orders:

    ·The proceedings be transferred to the court’s registry at Parramatta;

    ·An independent children’s lawyer be appointed for X and Y;

    ·She have sole parental responsibility for the children and they live with her in the Sydney metropolitan area;

    ·The children spend no time whatsoever and not communicate with the father;

    ·On a final basis, the mother seeks an injunction for her personal protection and for the personal protection of the children, pursuant to section 68B of the Act.

20. In general terms, it is the mother’s position that her unilateral move with the children to Sydney was justified in order to protect both her and the children from being subjected to further incidents of serious family violence emanating from the father. 

21. In his originating material, the father anticipated that it would be alleged by the mother that he had been violent towards her.  He pre-emptively denied this violence and has in turn alleged that it is the mother who has longstanding issues to do with her mental and physical health which have led to her being a reactive and violent person towards both him and the children. 

22. Both the father and the mother have filed a notice of risk, as required by section 67Z and section 67ZBA of the Act.  These sections mandate interested persons filing a formal document in cases where it is alleged that a relevant child has been abused or is at risk of being abused or where there has been family violence or a risk of such violence, to one of the parties concerned in future. 

23. In his notice of risk, the father alleges that the mother has assaulted both him and the children and damaged property.  He further alleges that the mother has slapped the children and grabbed X around the throat.  As such, both children are alleged to be at risk of suffering further assault and serious psychological harm from their mother. 

24. In her notice of risk, the mother has alleged that the father has assaulted both children on numerous occasions by hitting and pinching them.  In addition, she alleges that the children have been exposed to family violence by having witnessed their father assault her on many occasions.  As such, she asserts that the children are at risk of suffering risk of physical assault and serious psychological harm, if exposed to their father. 

25. Pursuant to section 67ZBB, the court is directed to take action in respect of notices of risk filed in proceedings before it as soon as is practicable.  In particular, the court must:

    ·consider what interim or procedural orders should be made to:

    Ø to enable appropriate evidence to be gathered expeditiously;

    Ø to protect the children or any of the parties to the proceedings;

    Ø deal with the issues raised by the notices as expeditiously as possible;

26. In their respective affidavit material, both the father and mother asserted that the South Australian Police had been called to their home in Adelaide on many occasions in response to allegations of violence.  In these circumstances, on 25 July 2016, an order was made pursuant to section 69ZW of the Act requiring SAPOL to produce to the court the following documents:

    ·any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

    ·any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations; and

    ·any reports commissioned by the agency in the course of investigating a notification.

27. On 5 September 2016, SAPOL responded to this notice and supplied 33 categories of documents to the court which consisted of a wad of paper approximately four centimetres thick.  In the main, these documents consisted of what are described as police apprehension reports; police investigation diaries; case management reports; and multi-agency protection service documents.

28. In addition, in her notice of risk, the mother advised that she had reported her allegations of family violence to the Red Cross.  I have not been provided with any documents from the Red Cross nor have those advising the mother chosen to subpoena any such documents. 

29. However, the mother’s solicitor has issued a subpoena directed to the Australian Migrant Resource Centre of Adelaide requiring it to produce documents relating to both parties and the children.  The documents so sought are not specified with a high degree of precision. 

30. The father objects to the production of these documents on the basis that they may disclose the contents of therapeutic counselling provided to the children”.  The date for their production, specified in the subpoena is 18 September 2016.  Accordingly the documents have not as yet arrived at court and the father’s objection has not as yet been determined.  The father does not wish his application to be further delayed.

31. Following the filing of the mother’s responsive documents, the case returned to court on 25 July 2016.  On this occasion, the father had had limited time to consider the mother’s documents and the court had not, at that stage, directed itself in respect of its responsibilities pursuant to section 67Z and section 67ZBA.  Accordingly, the proceedings were adjourned for interim hearing on 13 September 2016 in order to allow SAPOL to respond to the order directed to it pursuant to section 69ZW, which was made on 25 July.

32. On 6 September 2016, the parties were each permitted to inspect and copy the documents produced to the court by SAPOL.   At the hearing, counsel for the parties placed significant weight on those documents.  As will become clear at this point, there is little other evidence available to the court apart from the contradictory accounts of the parties themselves to resolve the significant evidentiary issues which the case throws up.

33. In brief, the father contends that he and his older child A were more significantly involved in the care of Mr Henry and Y than the mother, whom he characterises as having significant mental health issues which restricted her capacity to parent the children.

34. As a consequence, he asserts that there was no proper justification for the mother relocating the children clandestinely to Sydney, an arrangement which, if perpetuated, will result in the children losing a central relationship with him and their half siblings as Mr Henry is not able to move to Sydney.

35. From the mother’s perspective, she contends that she had no realistic alternative in order to protect both herself and Mr Henry and Y, from a violent and abusive relationship with the father other than to flee from Adelaide.  It is her case that the father’s violent behaviour to which both children have been exposed in the past, represents a significant risk to the children’s welfare.

36. Ms Hancock asserts that she has always been the main provider of care for the children. She denies that she has mental health issues or represents a danger to the children.  It is her case that the children are now safe and well settled in Sydney and it would be contrary to their best interests to return to Adelaide.

37. In these circumstances, the mother submits that the appropriate response to the questions of risk raised by her if for the proceedings to be transferred to Parramatta; the children to remain in her care in New South Wales; and for the court to put in place the necessary steps to gather further relevant evidence about the issues raised by her and the father through the appointment of an independent children’s lawyer and a family report.

38. Necessarily, Mr Henry’s position is that the appropriate forum to resolve these issues is in the location where the family lived until the mother’s unilateral actions.  On this basis he seeks that the proceedings remain in Adelaide and whatever investigation are deemed necessary are instigated out of the Adelaide registry of the court.

39. These proceedings are directed to resolving issues relating to the care of the children at an interim or provisional stage pending a more thorough investigation, when more evidence is likely to be to hand and there will be a greater opportunity for that evidence to be subject to scrutiny.   In addition, at this stage, the court must determine the appropriate location for that final or exhaustive hearing to take place. 

40. Centrally the court must determine, on an interim basis, with which parent the children should live which in turn will determine whether they will remain in Sydney or return to Adelaide.  As previously indicated, Mr Henry has indicated that it is logistically extremely difficult for him to move to Sydney.  For her part, Ms Hancock has indicated that she does not feel safe in Adelaide and has no wish to return to this city, where she asserts she has no family or emotional support.

The father’s case

1. The father makes the following allegations:

   ·In his opinion the mother suffers mental health issues.  She has declined to see a psychiatrist because she is frightened the government may remove the children from her care.  Whilst in (country omitted), she attempted to commit suicide which is evident from scars on her wrists.

   ·The mother suffers from insulin dependent diabetes.  On one occasion she collapsed and was taken to hospital.  As a consequence, police intervened and took the children to hospital.

   ·The mother has made numerous false complaints to police that she has been the victim of domestic violence from him.  Mr Henry denies these allegations. 

   ·The father concedes that police have come to the parties’ home on over twenty occasions and Ms Hancock has made three formal complaints to police, which have resulted in him being arrested and charged. 

   ·Following her complaints to police, the mother has subsequently informed the relevant officers that she was confused when she made her complaints due to symptoms arising from her not taking insulin.  She has declined to make subsequent statements to police and has admitted lying to them. 

   ·The mother has been violent towards him and the children and broken items of property in the home.  She has also punched holes in the walls.

   ·The mother frequently slaps the children and pinches them.  She grabbed X by the throat and choked him.  Some of these matters have been reported to police but the father has declined to proceed with charges against the mother because he loves her.

   ·The mother suffers from mood swings and would spend extensive periods of time in bed.  In these circumstances, he and A have provided for the care of the two younger children for about 70% of the time. 

   ·His accommodation is secure and comfortable for the children.

The mother’s case

1. The mother makes the following allegations:

   ·The father behaved in a controlling and aggressive manner towards her during the parties' marriage.  He hurt her at least once or twice each fortnight and sometimes up to four or five times per week. 

   ·This violence consisted of the father hitting her with his hands; slapping her face; grabbing her throat; and pulling her hair.

   ·The father made verbal threats to her including threatening to kill her. 

   ·The father fractured her nose whilst the parties were living in (country omitted) in (omitted) of 2011. 

   ·The child X has observed this behaviour. 

   ·The father has hit the children on many occasions, including after he has assaulted her or when the children were behaving noisily.

   ·The parties have separated on numerous occasions during their relationship.  Their longest separation was approximately three months. 

   ·During these separations, the mother and the children have lived in emergency accommodation arranged by the Police, Red Cross or an unspecified domestic violence organisation. 

   ·The father has prevailed on the mother to withdraw police charges against him by intimidating her.  He has threatened her with violence or that she will be returned to a detention centre if she does not continue with the marriage. 

   ·In August 2015, the father hit A who reported the incident to Police. 

   ·The father has been controlling of the mother in respect of her appearance and clothing. 

   ·The father has restricted the mother’s access to family financial resources particularly moneys received from Centrelink. 

   ·The mother denies that the father was significantly involved in the care of the children.  It is her position that he rarely helped with the children and she was the parent who regularly changed nappies, bathed and played with the children and prepared their meals. 

   ·The mother denies that she has ever behaved violently or aggressively towards either the father or the children. 

   ·On 22 January 2016, she and the father had an argument which escalated leading to the father slapping her face and pushing her head into wall.

   ·The following day the matter was reported to police who obtained an interim family violence order on her behalf.

   ·She acknowledges suffering from diabetes but asserts that her illness is under control and she takes her medication as directed. 

   ·She and X and Y are currently comfortably settled in a granny flat in the Sydney area which she has been renting since 8 July 2016. 

   ·She receives the maximum rate of a special benefit from Centrelink.  The two children concerned are attending day care three days per week and are well settled.

1. The mother’s position is summarised in her affidavit as follows:

   “I want the children to remain living with me in Sydney so that they are not exposed to any further violence or aggression.

   Based on my past experiences with Mr Henry, I am scared for the safety of my children and myself if we were to return to South Australia.  I have fears that Mr Henry will not follow the terms of any Intervention Order.  I am afraid that Mr Henry will continue to contact me and try to convince me to return to a relationship with him.  Mr Henry has not followed the orders in the past.  I am particularly concerned that Mr Henry will harm me or the children because he is very angry about me refusing to return to a relationship with him.”[2]

   [2]  See mother’s affidavit filed 21 July 2016 at paragraphs 111 & 112

Legal principles applicable

1. The evidence, so far available to the court in this case is confusing, contradictory and disturbing.  This evidence has been hastily prepared against a background of extreme emergency.  The documents produced by SAPOL were not created in response to these proceedings. 

2. Rather, these documents are essentially the business records of SAPOL.  As such, it is not currently possible to ascertain what the various officers concerned intended, when the records were made and what specific factors influenced the making of them. 

3. In addition, these proceedings arise at the interim stage.  At this stage, necessarily, the hearing before the court takes place in a shortened form, which does not allow for cross-examination.  In addition, other important sources of evidence, such as an independent expert assessment of the family concerned are not usually available. 

4. At the interim stage, the Full Court has pointed out that ordinarily, the court should not be drawn into issues of fact or matters relating to the merits of each parties substantive case.  Rather, it should look to what can be agreed between the parties and any less contentious matters.[3] 

   [3]  See Cowling v Cowling (1998) FLC 92-801

5. As the brief summary of the parties’ competing cases indicates in this matter, there are few, if any, such less contentious matters and the parties themselves agree on practically nothing of significance. 

6. Essentially, both the father and the mother assert that the other parent is a violent and inappropriate custodian for the two children concerned who, due to their tender years, are extremely vulnerable and warranting of the court’s protection.

7. Notwithstanding these evidentiary difficulties, the court must still make a decision and put in place the orders which it considers will best regulate the situation so far as X and Y are concerned, according to the relevant principles contained in the Act. 

8. In this context, it is clear that the court is required to consider child protection issues, in its decision making processes and should not defer its responsibility in this regard because of deficiencies in the evidence before it or more importantly because it is not in a position to resolve definitively controversies arising between the parties, including in respect of potential child abuse issues. 

9. In Deiter & Deiter[4] the Full Court said as follows:

   “The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”

   [4]  See Deiter & Deiter [2011] FamCAFC 82 at [61]

10. In SS v AH[5] the Full Court said as follows, in respect of the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature but nonetheless raised significant welfare concerns for the children concerned.  This is the case in the current matter.  The Full Court said as follows:

    “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.”

    [5]  See SS v AH [2010] FamCAFC 13 at [100]

11. In Eaby & Speelman[6] the Full Court endorsed this approach as enabling “the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.”  In essence, the court is not in a position to ignore child protection issues merely because those issues are incapable of definite resolution at the interim stage.

    [6]  See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]

12. With those strictures in mind, I turn now to the specific provisions within the Act dealing with the making of parenting orders and the relevance of family violence to such orders.  It is to be noted that although the nature of the hearing is different, at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. 

13. In deciding to whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].

14. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

15. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations.  Generally speaking, the court should give greater weight to the primary considerations which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.

16. There are two primary considerations which are as follows:

    a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

    b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

17. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

18. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”  Future protective issues for a child are the court’s priority. 

19. Accordingly, one of the major emphases, in the Family Law Act, is on protecting children who have been exposed to family violence in the past or who may be in the future.  It is a factor to be given priority, over other considerations including the likely benefits of a child having a meaningful level of relationship with parents. 

20. The primacy of this consideration has the potential to be crucial in cases involving the unilateral relocation of children where that relocation is said to have been precipitated by protective concerns relating to the children.  In such circumstances it is likely to be necessary for the court to examine the situation which confronted the parent who has relocated in the context of these protective concerns and assess, as best it can, the gravamen of the emergency confronting that parent.

21. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3).  There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

22. Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant.  This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

23. Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice, for the child affected, in every case.[7] 

    [7]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

24. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[8]  As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[9] 

    [8]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [9]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

25. Family violence is defined by section 4AB(1) of the Family Law Act.  It means:

    “violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”

26. The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:

    ·an assault;

    ·repeated derogatory taunts;

    ·intentionally damaging or destroying property; and

    ·the withholding of financial support.

27. Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person but also encompasses behaviour that unreasonably coerces or controls that person.  Both parties have made allegations, against the other, which fall within the examples listed in sub-section (2).

28. Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure, which include:

    ·overhearing threats;

    ·seeing or hearing an assault;

    ·comforting or providing assistance to a member of the child’s family, following an assault;

    ·cleaning up after property has been damaged; and

    ·being present when police attend an incident involving an assault.

29. In this case, both parties allege conduct which, in my view, easily falls within the definition and exemplars of family violence.  In addition, both assert that the children have been exposed to this conduct.

30. In assessing cases involving family violence, the court needs to be aware of the nature of family violence, in general terms.  Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home.  Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred.  However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”[10]

    [10] See Eaby & Speelman (supra) at 80,322 [21] per Ryan J

31. Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act.  It means:

    “(a)   an assault, including a sexual assault, of the child; or

    (b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

    (c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

    (d)     serious neglect of the child.”

32. Again, it would appear to be the position of each party that X and Y has been the subject of abuse as defined by the Act, either through direct assaults on their person or through exposure to family violence.

33. In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents in the lives and development of their children.

34. As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].

35. The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.

36. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

37. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

38. Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].

39. 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.  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.

40. 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.  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.[11] For the reasons outlined already, such a degree of analysis is not possible at the interim stage.

    [11]  See AMS & AIF  (1999) FLC 92,852

41. In Morgan & Miles,[12] 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.” 

    [12]  Morgan & Miles [2007] FamCA 1230

42. 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.” [13]

    [13] C & S [1998] FamCA 66

43. Accordingly, in my view, the present case turns on the court’s view of the degree of emergency which confronted Ms Henry and its assessment of the level of risk which arise for the children of either continuing the current arrangements or changing them.  In conducting this assessment the court must be mindful of the limited nature of the hearing before it, but cannot abrogate its fundamental responsibilities because of the evidentiary challenges which such a hearing presents.

44. The factors to be considered in respect of the change of venue of proceedings are set out in Rule 8.01(2) of the Federal Circuit Court Rules and include the convenience of the parties; the limiting of expense; whether the matter has been listed for hearing; and any other relevant matter.

45. I have not been advised as to whether the matter is likely to be heard sooner or later in Parramatta, as opposed to Adelaide.  Nor have I been advised as the logistics of the hearing being expedited in Parramatta.  At this stage, the case cries out for the appointment of an independent children’s lawyer.  It also seems likely that there remains much evidence to be gathered, particularly in the form of an independent expert assessment of the family.

46. Both parties have indicated their inability to move to the location of the other’s preference.  As such, it seems to me, that the determination, at the interim stage, of where the children are to live, is likely to be the most relevant factor in respect of the determination of the most convenient venue.

47. The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode can be summarised as follows:

    ·consider the section 60CC matters relevant;

    ·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:

    Ø  there are reasonable grounds to believe abuse or family violence has occurred;

    Ø  or in an interim matter only, it is not considered “appropriate” for it to be applied;

    ·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;

    ·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;

    ·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);

    ·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.

    ·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.

The SAPOL Documents

1. Neither party has attempted to index the police documents or tabulate them in a way, which would assist the court to reference them easily.  I accept that they have not had a lot of time to do this.  I have therefore read the documents myself and attempted, as best I could, to make sense of them.  I accept that I may not have been entirely successful in this.  This process delayed the delivery of judgment.

2. The police records are copious; duplicated; not placed in chronological order; and written in police bureaucratise.  There are also different categories of documents, which were apparently compiled by the officers concerned for different purposes.  It is however clear that they were compiled solely for the purposes of the police and not necessarily to inform an outside source of what actually occurred and what is or was the view of the officers concerned. 

1. It is not easy for the lay person to follow the documentary trail.  The documents are largely computer generated.  The date they bear is the date on which the document was generated rather than the date of the incident reported in the record concerned.  In addition significant portions of the documents have been subject to redaction.

2. The records reveal Mr Henry has one prior court appearance, for failing to comply with a bail condition, in respect of which he was discharged without penalty.  The offence occurred on 11 October 2013 and it was dealt with on 5 February 2014.

3. The records speak of Ms Hancock having an Immigration Department worker.  Evidence available to the police, from this person, indicates that the parties came from (country omitted) separately and were initially placed in separate detention centres.

4. The first category of documents is entitled incident reports.  On 13 September 2013, the mother reported to police, at (omitted) Police Station that she had been raped and punched by the father, in late August 2013 and 13 September 2013 respectively.  The mother also alleged that she had been given some form of tranquilising drug, by the father, prior to being sexually assaulted.

5. She alleged that the latter incident had been precipitated by her resisting the father’s wish to handle Centrelink money.  Mr Henry was interviewed and denied all the allegations put to him by police, asserting his wife was crazy and emotional due to her diabetes and pregnancy. 

6. On 30 September 2013, the mother approached police and asked them to withdraw charges as she was shortly to give birth.  Police declined to do so and the mother was referred to a senior counsellor at Relationships Australia with CALD experience. [14] It seems clear that a family violence order was issued against the father following the September complaint.

   [14] An acronym for Culturally and Linguistically Diverse.

7. On 18 December 2013, the mother was interviewed at (omitted) police station again.  She complained that she had been assaulted whilst attending at the father’s home to collect some of her possessions.  She alleged she had been grabbed around the throat and scratched with a set of keys.

8. The father was interviewed in respect of an alleged breach of restraining order following his arrest.  He alleged that the mother came to his home, unbeknownst to him, whilst he was out.  When he returned she became emotional and began hitting herself.  Later placing her scarf around her neck.  Accordingly, he denied any intentional breach of the family violence order.

9. In October 2014, the father also made complaints to police that the mother had damaged property in the family home.  He also complained that she had stolen property from him.  It seems that, at least from the perspective of police, during this period, the parties were living largely apart but spending time together on weekends so that the father could see the children.  Extensive damage was observed in the premises including a broken television set caused by having a bowl of yoghurt thrown at it.  The father alleged the incident had been precipitated by the mother not taking her insulin.

10. On 2 March 2015 police were called to the home in respect of a verbal altercation between the parties by the mother.  No injuries were observed.  The mother declined further assistance.  Under the heading History it is noted there has been numerous DV incidents between this couple.

11. The mother called police again on 14 February 2015, in respect of an argument over an air conditioner.  She declined to provide a statement.  Under the heading History it is noted that there are 6 previous incidents… MAPS[15] and other agencies involved and there seem to be on-going issues regarding culture and victim not cooperating.

    [15] MAPS is an acronym for Multi-Agency Protection Service

12. In mid-2015 records note that the mother contacted police to advise that she had moved out of the home but is in constant fear the father will find out where she lives and [she] feels he is a significant threat to her welfare and that of her children.

13. In October/November 2015 a series of entries indicate that police assisted the mother and children to pack up their belongings and for accommodation arrangements to be made through crisis care.  The records note that the summons was made by a 13 year old female – presumably A – who wanted help for herself and her mother.  The note indicates that no accommodation was available and the family decided to move from the front of station to their car to sleep a bit more comfortably. 

14. A follow up on 4 November indicated that the mother was then in domestic violence housing with 3 children and was receiving DV services.  She did not want to make a report to police.  A DV Risk assessment indicated a medium score of 32.  I do not know what this means in specific terms and what considerations are utilised to make the assessment.

15. On 22 January 2016 the police records indicate that the mother presented at the (omitted) police station and complained of having been slapped by the father following an argument about the changing of a nappy.

16. The next category of documents is entitled Running sheet entries.  The entries are titled Domestic Violence High Risk.  They are voluminous and not easy to follow.  As such, I am conscious of the risk of picking entries out of context. However it is clear that the various authors of these records are highly concerned about the situation of both the mother and the children, in the period prior to the parties’ final separation.

17. In January 2014, the mother is reported as complaining to the effect that every wife is assaulted by her husband and police are making a big deal of it.  She is also described, around this time, as displaying signs of not being able to cope.  The police express concern about the withdrawal of charges.  Injuries are observed on X.  Conflicting versions are provided in respect of these injuries by the parties.

18. On 5 January 2014, the running sheet indicates that the mother passed out at a pharmacy and been taken to hospital for a suspected panic attack.  She was apparently in hospital overnight.  The running sheets further indicate that the mother has made numerous representations to police that she wants charges withdrawn against the father and the dvo removed. 

19. Police and the magistrate presiding over the case are noted as not being sympathetic to such a course of action.  The mother is told she may be charged with aiding a breach of the order and her children removed from her.  I am not in position to comment on the accuracy of the information apparently provided to mother.

20. What information can be gleaned from the running sheets is both confusing and concerning.  By the time of SAPOL’s final involvement, just before the mother’s departure for New South Wales, the risk assessment is noted to be 48.  In earlier records it had been noted as being 83.  Again, I reiterate that I am unaware precisely what this signifies and how the figures are calculated.

21. The most recent MAPS summary documents assess the mother as being at high risk of domestic violence.  She is described as being easily intimidated by the father.  The rape charge was apparently dismissed for want of prosecution. Police are described as being frustrated with the mother for returning to the father.

Conclusions

1. In my view, given the significant involvement of the police, with this family, it would be imprudent of the court to overlook or minimise issues of family violence in this case and indeed such a course would be contrary to the legislative intent of the Act [see section 60CC(2)(b) & 2A].  As previously indicated, the applicable legislation requires protective concerns to be given primacy over matters relating to parental relationships, so far as children are concerned. 

2. From both parties’ perspectives, the issues of family violence and abuse are the most pressing issues in the case and, in this context, how best are X and Y to be protected from coming to some form of either physical or psychological harm as a consequence of being exposed to such abuse.  The difficulty of course being that each party alleges that it is the other who represents the greater source of risk for the children.

3. As I am at pains to point out to all concerned, I am not in a position to resolve who of the parties was the main proponent of this violence. I am, however, satisfied that significant family violence has occurred and the children have been exposed to it, within the terms envisaged by section 4AB(3) of the Act.

4. I am also well aware that, in the context of this abbreviated hearing, I must be cautious about making pre-emptive findings of fact.  However, necessarily because of my protective obligations towards the children concerned in this case, I must make some preliminary assessment of the evidence available to me, particularly in the form of the extensive SAPOL records which have been produced to the court pursuant to section 69ZW. 

5. From these documents, it is clear that several members of the police force held grave concerns for the safety of the mother.  In addition, although the charges were discontinued, the father was subject to serious criminal charges.  Significantly, in my view, the family was the subject of multi-agency attention and, for a period of several weeks, the mother and the subject children were placed in secure accommodation.  Accordingly, it is clear that a number of responsible authorities took the mother’s allegations seriously and put in place a considered response to them.

6. An examination of the documents also indicates that at various stages of their involvement with the family, police officers attempted to ascertain the potency of the family violence, which had both been reported to them and which, at least to some degree, had been observed by police officers.  This ranking has been, at times, in the moderate to extreme range, as best as I can understand from the evidence available to me.  Accordingly, SAPOL have never considered the mother’s situation to be anything other than one warranting their serious attention.

7. As a consequence of these matters, I have reached the conclusion that it is more probable than not that it is the mother, rather than the father, who is the party at the greater risk of being exposed to family violence, particularly if her return to Adelaide is compelled.  In this context, I must examine prior arrangements for the children’s care, both before and after January of 2016.

8. The parties are in vehement conflict as to who of them has been the children’s main provider of care in the period prior to their separation.  The evidence, currently available to me, tends to suggest that the children are likely to know both their parents well, given the structure of the family prior to January of 2016, which for lengthy periods of time resulted in them sharing the same accommodation.  In addition, during periods of separation, the mother took steps to bring the children to the parties’ former home. 

9. Accordingly, I accept that, for the children to remain in Sydney, possibly for a lengthy period, has the potential to be highly disruptive of the quality of the relationship, which they have with their father, given that this relationship was sustained by frequent interactions prior to the relocation.  This is a significant consideration, given the tender ages of both children but particularly Y, who is not yet three years of age.  I appreciate that young children need to frequently refresh parental relationships, through regular contact, to maintain meaning in those relationships.  This will obviously be extremely difficult, if not impossible, given the current geographic situation.

10. However, for the reasons already provided, I assess the potency of the family violence allegations made by the mother, which are supported by extensive police involvement, to be a more important consideration for the court, at this early stage of proceedings. 

11. In particular, in my assessment, although there is some evidence potentially supportive of the father’s claim that the mother has some level of mental instability, which has led her to fabricate claims of family violence, from which she has later resiled, in my view, this allegation is not firmly supported by the evidence currently available to me.

12. In my assessment, the children’s safety will be maintained if they continue to live in the Sydney area.  It is of some significance that the mother and the children concerned have been residing in that city for a period approaching eight months.  As such, I accept that it would be highly disruptive for both the mother and the children to return to Adelaide and such a return is likely to pose significant logistical problems. 

13. I am required, as one of the additional considerations, to consider the consequences of any change in the circumstances of the children concerned [section 60CC(3)(d)].  The mother speaks limited English.  She is in receipt of social security payments.  If compelled to return to Adelaide, more likely than not, she would be able to receive some assistance, either directly from government or some other non-government agency, to assist her with emergency accommodation, in such an eventuality. 

14. I acknowledge that she has sought such assistance in the past and is likely to be able to do so in future, notwithstanding any linguistic or cultural difficulties, which she has.  However, in my view, such a relocation would be very difficult and expensive for her, given her financial circumstances.  It is not likely that the father would be either able or perhaps willing to assist her financially to return to Adelaide.  Certainly, he has not made any offer in this regard.

15. Again, in my view, given the serious allegations of family violence, this is another factor which militates in favour of the children remaining in Sydney, in their mother’s care, notwithstanding the obvious implications, which such an arrangement has for the father’s relationship with X and Y. 

16. I am also required to consider the nature of the relationship the children have with other relations who are significant to them [section 60CC(3)(b)].  In this context, until January 2016, the children shared accommodation with their half siblings A and B.  Indeed, the SAPOL documents indicate that, at one stage, A was living with the mother and X and Y in domestic violence accommodation.

17. It is a significant plank of the father’s case that it is not desirable that the half siblings be separated for an extensive period of time.  I accept that such an outcome cannot be considered optimal for the children but in my assessment, important though this consideration is, it does not outweigh the significant protective concerns which I hold.

18. This is a case which requires the appointment of an independent children’s lawyer.  This is warranted for a number of reasons which include the following: the cultural background of the family; the potential separation of half siblings; the serious allegations of parental deficit made by each of the parties; and the extreme level of conflict, which currently is apparent between them.  Such an appointment can be made as easily in South Australia as in New South Wales. 

19. Similarly, a family report is likely to be useful to the court.  Again, this can be obtained just as easily in either state concerned, although if it is compiled in Sydney and the mother and children remain there, it will be necessary for the father to travel from Adelaide to take part in it as well as A and B, given the significance of their relationship to the two children who are the direct subject of these proceedings. 

20. As indicated above, Mr Henry has indicated unequivocally that he will not consider relocating to a place either in Sydney or closer to it in order to be able to spend time with the children more easily.  As such, this is not a case which calls for consideration of the probability of one parent moving closer to the other parent and children concerned. 

21. In this context, I am required to consider logistical issues relating to the practicality of a child spending time with a parent [section 60CC(3)(e)].  In this context, I accept that in the short to medium term, given Mr Henry’s reluctance to consider moving to New South Wales and his overall financial position, the practical difficulties arising from him spending time regularly with X and Y are very significant indeed. 

22. In addition, at this point, the parties are likely to be unable to communicate with sufficient effectiveness to make the necessary arrangements for the children to spend time with their father and A and B, in either Sydney or Adelaide.  These difficulties emphasise the stark decision facing the court at this interim stage. 

23. However, having considered the various factors arising under section 60CC(2) & (3), I have come to the conclusion that the interests of X and Y will be best served if they remain living in their mother’s care in Sydney, notwithstanding the implications this will have for the level of their relationship with their father and half siblings.

24. I reach this conclusion because of the serious nature of the allegations of family violence made by the mother.  I appreciate that the allegations are vehemently disputed and there is, as yet, no irrefutable evidence that the violence has occurred in the manner alleged by the mother, given the withdrawal of charges by police and the fact that no officer is in a position to provide an eye witness account of any incident of violence. 

25. However, the absence of independent corroboration does not end the court’s obligation to approach cases involving family violence with extreme caution.  Given its nature, family violence more often than not takes place in private and the only direct witnesses to it are the family members concerned in it.  As such independent verification that it has occurred is not always available to the court, particularly at an early stage of proceedings.

26. I also take into account the fact that the children have been in Sydney, in their mother’s care, for a reasonably lengthy period of time and are settled, to some extent, in that city.  Although I also accept that I cannot infer any level of acquiescence, on the father’s part, from the length of this period.  In particular, this is not a case where it will be comparatively easy for the relocating party to return to the place left.

27. I have come to the conclusion, given the significance of the allegations of family violence in this case, that it would not be appropriate, at the interim stage, for the presumption of equal shared parental responsibility to be applied.  In addition, I also consider that there are reasonable grounds available to enable me to conclude that significant family violence has occurred in this family.

28. I have not been advised as to when a final hearing, if expedited, can occur at the Parramatta registry of the court.  In Adelaide, such a hearing is likely to be able to be fixed in the final quarter of 2017.  Given the level of complexity arising in this matter, it also might be one which is appropriate for transfer to the Family Court.  Again, I have not been advised as to when that court could accommodate a final hearing, either in Adelaide or Parramatta. 

29. However, in my view, the availability of a court to hear the parties competing applications should not pre-empt protective concerns in respect of the children concerned, unless the delay is an inordinate one.   There is no evidence available to me to indicate that this would be the case in this matter.

30. Given my conclusion that the children’s best interests are served by them remaining in Sydney pending final hearing, in my view, this is the decisive factor which favours the transfer of the matter to the court’s registry at Parramatta.

31. I will request that the matter be given an expedited hearing and that a family report be prepared as quickly as possible.  I will also make an order for the appointment of an independent children’s lawyer by the Legal Aid Commission of New South Wales.

1. Given the rebuttal of the presumption, I will confer parental authority on the mother in the interim.  It is appropriate that the orders, earlier made, restraining the children leaving Australia continue.  In the absence of concrete proposals, from either party, for the children to spend time with their father, I do not consider that I am in a position to make any order in this regard.

2. 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 six (146) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:         23 September 2016