Hornwood and Tyrell

[2017] FCCA 1685

FEDERAL CIRCUIT COURT OF AUSTRALIA

HORNWOOD & TYRELL [2017] FCCA 1685

Catchwords:
FAMILY LAW – Interim parenting arrangements for children aged eight & six – unilateral relocation – nature of interim hearing – allegations of family violence and drug abuse – assessment of risk – assessment of level of emergency facing mother prior to unilateral relocation – best interest.

Legislation:

Family Law Act 1975, ss.4AB(2)(f); 60CA; 60B(1)(a); 60B(2)(d); 60B(4); 60CC(2); 60CC(2A); 60CC(3)(c); 60CC(3)(d)

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Applicant: MR HORNWOOD

Respondent: MS TYRELL

File Number: ADC 1937 of 2017

Judgment of: Judge Brown

Hearing date: 18 July 2017

Date of Last Submission: 18 July 2017

Delivered at: Adelaide

Delivered on: 21 July 2017

REPRESENTATION

Counsel for the Applicant: Mr Clarke

Solicitors for the Applicant: Clarke Hemmerling Lawyers

Counsel for the Respondent: In person

Solicitors for the Respondent: Not applicable

ORDERS

1. The mother return the children [X] born (omitted) 2009 and [Y] born (omitted) 2010 so that they live with her in a residence within 45km of the [Town C] Town Hall in the State of South Australia no later than 4:00pm on 1 September 2017.

2. Until further or other order the aforesaid children live with the mother and they spend time and communicate with the father at such times and on such conditions as agreed between the parties from time to time.

3. No later than 8 September 2017 the father provide to the mother the sum of $500.00, which she is to utilise in order to obtain suitable rental accommodation for her and the children in order to give effect to order (1) hereof.

4. The father is directed to pay to the mother the sum of $150.00 per week, for a period of six (6) months commencing on 8 September 2017 with the sum in question to be paid into a bank account to be nominated to the father by the mother, with the sum to be allocated to the payment of the mother’s rent in respect of her and the children’s rental accommodation.

5. Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 25 September 2017 at 9:30am, to discuss the care, welfare and development of the children [X] born (omitted) 2009 and [Y] born (omitted) 2010 in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.

6. In the event that the mother fails to comply with order (1) hereof, the father’s application be listed for urgent hearing in respect of any application, which he may wish to pursue, for a recovery order in respect of the aforesaid children.

7. The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the children or from permitting any other person to do so.

8. The matter is fixed for final hearing before Judge Brown on 10 & 11 September 2018 at 10:00am NOTING 2 days allowed.

9. Further consideration of the matter is adjourned to 29 September 2017 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1937 of 2017

MR HORNWOOD

Applicant

And

MS TYRELL

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an urgent interim parenting application concerning the unilateral relocation of eight year old [X] and six year old [Y] from [Town A], South Australia to an as yet undisclosed location in the vicinity of [Town B] in Western Victoria.

2. The applicant in the proceedings is Mr Hornwood.  He is [Y]’s father but not [X]’s father.  The respondent to the application is Ms Tyrell.  She is the mother of both children. 

3. The parties met in 2009, when Ms Tyrell was pregnant with [X].  It is Mr Hornwood’s position that he has fulfilled the role of [X]’s father during the whole of her life to date and has similarly been involved with [Y], since she was born. 

4. [X]’s biological father has not been identified in the documents filed so far.  Mr Hornwood deposes that he has treated [X] as if she was his child and [X] calls him “dad”, although she has been told that he is not her natural father. 

5. The parties agree on practically nothing of significance about the nature of their relationship.  This is not surprising given the father instituted the case against a background of considerable urgency, from his point of view and the outcome of the case, at this stage, is charged with great moment for both Mr Hornwood and Ms Tyrell. 

6. Mr Hornwood asserts that he and Ms Tyrell finally separated, fairly recently, on 2 May 2017, when Ms Tyrell asked him to leave their shared home at [Town A].  Thereafter he went to live with his mother in nearby [Town C].  The children remained behind in [Town A].

7. Since this date, he has not spent any time with the children.  When he went back to the [Town A] property, to collect his car, he says Ms Tyrell locked the children away from him, causing them considerable distress.  He asserts that since this time, she has been avoiding him and has been extremely evasive in respect of arrangements for him to engage with the children.

8. Ms Tyrell has strong family connections in Western Victoria, particularly [Town B].  Following separation, Mr Hornwood was fearful that Ms Tyrell might take the children to Victoria and he would not be able to see them again easily, which would be heartbreaking for him personally and not in the children’s best interests, given their close and long standing relationship to him. 

9. He asserts that he and Ms Tyrell lived in a variety of locations, in South Australia, during their eight year relationship and he played a very significant role in caring for the children, whom he deeply loves, both in emotional and practical terms. Against this difficult background, on 18 May 2017, he commenced proceedings, in this court, seeking the following interim orders:

   ·An injunction restraining Ms Tyrell from removing the children from within forty kilometres of [Town C];

   ·He and the mother have equal shared parental responsibility for [Y], who should live with the mother;

   ·He spend time with both [X] and [Y] on alternate weekends. 

10. Mr Hornwood’s application was hurriedly prepared.  No doubt, his lawyer hoped that it could be expeditiously served on Ms Tyrell to forestall any plan, on her part, to leave South Australia and so all concerned would be subject to a minimum amount of disruption, until concrete steps had been put in place to resolve efficiently and fairly all of the parenting disputes between the parties concerned.  The Registrar of the court fixed 20 June 2017, as the matters first return date.

11. In his affidavit Mr Hornwood deposed as follows in respect of the urgency of the case, from his point of view:

    “I have since become aware that the mother has said that she intends to move as soon as possible to Victoria and take the children with her.

    I sent her a text message stating:_

    “[Ms Tyrell] I do not give you permission to leave south Australia with my daughter [Y]”

    The mother replied:-

    “Lol”  [laugh out loud}

    I replied:-

    “It’s no laughing matter if you fail to follow my request of leaving south Australia as I have and will not give you permission to do so with [Y] if you choose to proceed to take her away from her father I will have no choice but to proceed with legal action.”

    The mother has not responded but I believe that she is still intending to move to Victoria as she has told the school the children will not be coming there for much longer.”[1]

    [1]  See affidavit of Mr Hornwood filed 18 May 2017

12. What Mr Hornwood feared has come to pass.  Despite his request that Ms Tyrell not take the children out of South Australia, they have been taken to an undisclosed address in Western Victoria.  On 20 June 2017, Ms Tyrell had not been served with the application.  The case was adjourned until 18 July 2017 to enable service.

13. For obvious reasons, when children are moved unilaterally interstate, it causes great difficulties for all concerned – the parent left behind is apprehensive about possible implications of the move for his/her on-going relationship with the children concerned.

14. The parent who has moved invariably asserts that he or she had pressing reasons for the move and once made, it cannot be easily unmade, most usually because it will have significant financial implications.

15. From the court’s perspective, it is presented with a metaphorical scrambled egg of competing principles based on claims and counter-claims, which cannot be easily unscrambled, if at all.  For all these reasons, it is usually preferable for proposed relocations to be put on hold until the court is able to put in place fixed and clear parenting arrangements for the children concerned, after hearing evidence from all concerned.

16. This avoids the dilemma arising in this case, in which Mr Hornwood demands that the children be returned to the location in which they have lived for a significant period of time and which has enabled him to be involved in their lives; whilst Ms Tyrell asserts that she was only acting for the best and it is now effectively impossible for her to return.

17. Ms Tyrell sought legal advice from Legal Aid in (omitted).  She has not been granted legal aid for these proceedings.  Mr Hornwood’s solicitor was able to serve Ms Tyrell via the solicitor in (omitted).  Ms Tyrell filed her response and an affidavit in support on 16 July 2017.  She has prepared her own documents.  She seeks the following orders:

    ·The case be transferred to the court’s circuit to Ballarat;

    ·The children live with her and she have sole parental responsibility for them;

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

    ·The children be independently represented;

    ·A child dispute resolution conference be convened urgently;

    ·The children continue to live with the mother at her address in Victoria, which was not to be disclosed to the father.

18. In contrast to the father, Ms Tyrell asserts that the relationship between the parties ended several years ago in June of 2014.  Prior to that time, she agrees that they lived in various locations in South Australia, whilst she attempted to make the relationship work for the sake of the children, in difficult circumstances.

19. It is her position, as I understand it, that prior to June 2014, the parties’ relationship was marked by periods of separation, during which she lived in Victoria, with the children.  It is her case that the periods when the parties did cohabit were marked by significant family violence and the father’s serious drug abuse.

20. Essentially, Ms Tyrell describes Mr Hornwood as being a very angry and violent person of whom both children are frightened.  In addition, she characterises him as not being greatly interested in the children’s welfare.  Rather, she describes the father as being psychologically unstable, asserting that he has threatened suicide on many occasions.

21. Given the absence of legal aid, Ms Tyrell has prepared her own documents.  It is not easy to gain a clear chronology of what involvement she says Mr Hornwood has had with the children, since June 2014. 

22. However, in court, she told me that she had tried to facilitate the children having a relationship with the father, in the hope that he would get his act together in respect of his anger, violence and drug use.  However, as this had not happened, she had reached the end of her tether and had decided to move to Victoria, where she had family support. 

23. This move coincided with the end of her lease in [Town A].  In court, Ms Tyrell told me that she had negotiated the surrender of her lease, with her landlord, because she could no longer afford to pay the rent of $330.00 per week. 

24. Ms Tyrell’s major source of financial support is social security payments of approximately $900.00 per fortnight.  Until recently, the children attended (omitted) School, at [Town C].  The fees have not apparently been paid.  It is the mother’s position that she is in debt in an amount of approximately $12,000.00, which includes some school fees. 

25. Ms Tyrell further told me that, to use her own terminology, she had no choice but to pack up and leave.  She is critical of Mr Hornwood for being significantly in arrears in respect of child support payments for the children.

26. Ms Tyrell acknowledges that she received the text message from Mr Hornwood requesting that she not move the children to Victoria.  She also agrees that she responded with “lol” and this is an acronym for laugh out loud.  However, she refuted any suggestion that this was a provocative or insensitive comment. 

27. Rather, Ms Tyrell asserted that she was responding, in kind, to what she regarded as the father’s harassing text messages.  She has summarised them in her own affidavit, as follows:

    “The Applicant has harassed and intimidated me with numerous text messages and phone calls

    i)  16th May 2017 at 9.43pm “you need to rethink moving” "

    ii) 17th May 2017 at 12.38pm “Ms Tyrell] it will be a waste of money for you to move interstate just giving you the heads up you will have to move back”

    iii)     9th May 2017 at 9.12am “well don't say I haven't warned you about leaving the state”

    iv)   19th May 2017 at 9.18am “well don't say I haven't warned you about leaving the state”

    v)  19th May 2017 at 9.31am “well don't say I haven't warned you about leaving the state”

    vi)     20th May 2017 at 5.24 pm “any way have fun moving back”

    vii)    He then stole our pet Dog (omitted) out of my backyard at appox 5.35pm and later over the phone demanded I swap [Y] in return for (omitted) or he would kill himself.”[2]

    [2]  See affidavit of Ms Tyrell filed 18 July 2017

28. With the greatest respect to the mother, I do not agree with her assessment of these messages as being harassing and intimidating.  I am, however, concerned about the allegation made about the children’s pet dog.  It is the mother’s position that the dog remains missing.  If the dog has been intentionally harmed, by Mr Hornwood, in my view, it represents a significant act of family violence [see Family Law Act at section 4AB(2)(f)].

29. It is the mother’s evidence that she has now obtained family violence orders, in respect of the father, in both Victoria and South Australia.  I have not been provided with copies of these orders and do not know on what specific grounds they were granted. 

30. It is Ms Tyrell’s evidence that the police in South Australia advised her to move interstate and then obtain an intervention order.  Again, whether this was the exact nature of the advice proffered by the police and what was the expertise and seniority of the officer or officers who proffered it, is not known to me. 

31. Ms Tyrell concedes that the children were regularly seeing the father.  She described this to me as being “basically a couple of times per week”.  She conceded that both children knew the father and that he loved them.  However, in her view, the children were not safe around Mr Hornwood and both were frightened of him. 

32. At the present time, Ms Tyrell has been able to secure rental accommodation through a family member.  Her rent is subsidised and much cheaper than what she was paying in [Town A].  Her current rent is $190.00 per week.  In her view, the accommodation is also better.

33. The mother concedes that (omitted) School is a good school and the children enjoyed attending there.  She also concedes that the children had made friends at the school.  However, she now asserts that both [X] and [Y] are well settled in Victoria and are happy at their new school.  Obviously, Mr Hornwood does not know where this school is and is so precluded from engaging with any of the children’s teachers.  The effect of Ms Tyrell’s actions is to exclude him entirely from the day to day life of the children.

34. It is also Ms Tyrell’s evidence that both [X] and [Y] have become more relaxed since leaving South Australia.  In this context, she asserts that [Y] has been able to disclose to her that she was the subject of some form of sexual interference, whilst in her father’s care, at some time in 2014, whilst she (Ms Tyrell) was in hospital for some form of gastric surgery. 

35. The nature of the disclosure was that the child indicated that an acquaintance of the father had taken her to the toilet, on the pre-text of teaching her how to wipe her bottom and whilst there had subjected the child to some form of sexual abuse.  Ms Tyrell does not assert that Mr Hornwood was directly involved in this incident but, from her perspective, it is indicative of the fact that he is not able to properly protect the children and lacks a proper level of parental insight. 

36. Mr Hornwood was presented with the mother’s serious allegations against him only on the day of the hearing.  His lawyer did not seek an adjournment of the proceedings.  Rather, after reading the affidavit, Mr Hornwood, through his counsel, bluntly denied the truth of all the allegations of family violence and drug abuse.  From Mr Hornwood’s perspective, Ms Tyrell had acted unilaterally and was intent on using delay to advance her position. 

37. Accordingly, it is essentially Mr Hornwood’s position that all the allegations against him are fabricated.  He asserts that the mother has disingenuously used every mechanism available to him to frustrate his hitherto positive relationship with both [X] and [Y], so that she can achieve her preferred outcome of being able to live in Victoria without proper accord being given to the court’s processes or to his entitlement to oppose the relocation.

38. In these circumstances, he seeks orders that would require the mother to return the children’s place of residence to somewhere in the [Town C]/[Town A] area.  Thereafter, he would want to be able to spend regular weekend time with the children and for them to be re-enrolled at their previous school. 

39. Mr Hornwood refutes any suggestion that he represents any risk to the children’s wellbeing.  To the contrary, it is his position that for the children’s meaningful level of relationship with their father to be abruptly severed by Ms Tyrell’s unilateral actions is not an outcome in the children’s best interests, and accordingly, not one which the court should endorse, particularly at the interim stage, where any evidence available to the court is likely to remain controversial because it cannot be tested through any process of cross examination. 

40. These reasons for judgment are directed to resolving this extraordinarily difficult problem on an interim or provisional basis.  In my view, there is no obvious answer to the difficultly which this case throws up.  Whatever happens, one of the parties will feel aggrieved at the outcome of the case and will perceive that it is not in the best interests of the children concerned.

41. From the mother’s perspective, her case can be summarised as follows:

    ·She had a compelling set of reasons to support her move to Victoria.  These included the following:

    oShe was the victim of significant family violence;

    oThe children had been exposed to this violence and were apprehensive about interacting with their father;

    oShe had nowhere to live in [Town A];

    oShe has no family support in South Australia;

    oHer personal preference is to live in Victoria and she is the children’s undisputed primary carer and residential parent.

    ·It is economically unviable for her to return to [Town A], given her level of debt and the likely expense of rented residential accommodation in South Australia;

    ·She is the subject of a family violence order granted in respect of Mr Hornwood;

    ·[X] is the subject of an outstanding complaint of sexual abuse, which is being investigated by police and therefore it would be inappropriate for her to have to come into contact with the father, whilst this investigation is ongoing.

1. On the other hand, the father’s case can be summarised as follows:

   ·The mother has fabricated claims of violence and antisocial behaviour against him in order to secure her own personal objectives;

   ·In this context, he points to the fact that the mother is unable to provide any independent or objective evidence to support her allegations against him, which are categorically denied;

   ·He has played an extensive role in the children’s lives since the date of each of their respective births, and as such, the children are likely to benefit from a meaningful level of relationship with him;

   ·He clearly and unequivocally indicated to Ms Tyrell that he did not agree to the children moving to Victoria and, as such, he put her on notice that he would institute proceedings to prevent it;

   ·As such, the mother must suffer the consequences of her unilateral actions, which cannot be justified in all the circumstances of the case;

   ·The mother’s application to relocate the children’s place of residence should be properly determined, by the court, on a level playing field not one which has been skewed to favour Ms Tyrell by her unilateral action.

2. The father is 37 years of age and is employed as a (occupation omitted).  He earns approximately $1,000.00 per week.  It is his position that he provided money to Ms Tyrell to pay the children’s school fees but she axiomatically cannot have used the funds for this purpose.  He acknowledges that he is in arrears of child support but disputes the quantum of the arrears as asserted by Ms Tyrell. 

3. Through his counsel, Mr Clarke, the father has indicated that he is open to Ms Tyrell having a reasonable period of time to arrange her affairs prior to returning to South Australia.  He is also prepared to assist her financially with the move and to pay up to $150.00 per week towards the rent of the accommodation required for the mother and children in the [Town A]/[Town C] area.  It is his position that there is a reasonable amount of suitable accommodation currently available in the $300.00 per week rental bracket.

4. Having summarised the parties’ respective positions, it is necessary to outline the difficulty facing the court.  At this stage, I do not know who of the parties is the more truthful witness.  As such, I am unable to make definitive findings about all the very serious allegations which have been made in this case.

5. In addition, at this stage, I do not have any independent and expert evidence about how the children are currently coping emotionally or what is the level of their relationship with each of their parents.  Due to the urgency of the situation, there has been no time for a family report to be prepared. 

6. I appreciate that it will be extremely difficult for Ms Tyrell to have to return to South Australia.  Clearly she has no wish to do so and, if what she says is true, she had very good reasons for wanting to move.  However, I do not as yet have a clear evidentiary basis from which I can conclude that she did indeed face a state of sufficient emergency such as to justify moving the children far away from Mr Hornwood.

7. The focus of much of Ms Tyrell’s affidavit evidence was on events which occurred between her and Mr Hornwood some years ago, certainly prior to 2014/15.  There was little detail about what had occurred more recently.  The most significant evidentiary dispute between the parties is when their relationship actually came to an end and what caused the final rupture between them.

8. In answer to my questions, Ms Tyrell conceded that Mr Hornwood had continued to see the children regularly, after what she said was the date of separation and to stay overnight at [Town A].  It is also clear that she was able to negotiate the end of her lease in an ordered fashion, prior to what was a planned move to Victoria.

9. It is also clear that she was well aware that Mr Hornwood was not agreeable to the move, which she does not seem to have formally canvassed with him.  A necessary implication being that she knew, if she did so, he would unequivocally indicate his opposition to the move.

10. In addition, I am concerned that the family violence orders in question were obtained after the move rather than in conjunction with it.  In these circumstances, it seems at least questionable that the mother was compelled to move away from [Town A] because of some immediate point of crisis relating to family violence or some specific incident.

11. In short, Ms Tyrell has provided little evidence as to what precisely happened in early May of 2017, when tensions between the parties appear to have become extreme and when Mr Hornwood deposes that the mother asked him to leave the home.  In this context, there is no suggestion that police were involved in the incident which led to Mr Hornwood moving in with his mother in [Town C].

12. The impression I gained from Ms Tyrell’s evidence is that she perceived that she was going backwards financially, in [Town A] and considered that she would be more secure economically in Victoria.  Accordingly, there seem to have been no direct and immediate catalyst which triggered the move.  Rather it was a sense of growing dissatisfaction with her circumstances, which led to her planned but unilateral move to Victoria, which she anticipated would be highly controversial so far as Mr Hornwood was concerned. 

13. The exact nature of the parties’ relationship with one another, in early May, particularly in financial terms, is very uncertain to me.  If there was an ongoing de facto relationship, why a child support assessment?  When did that assessment commence?  What care arrangements did it reflect?  What is the correct situation so far as the payment of the children’s school fees is concerned, particularly why have the fees fallen into arrears, if Mr Hornwood was contributing regularly?

14. In addition, if Mr Hornwood’s conduct had posed a growing threat to the welfare of the children, why had Ms Tyrell not hitherto withheld the children from him or sought some form of intervention from the court.  If she felt threatened by Mr Hornwood, why did she not obtain a family violence order earlier?  These factors, in my view, go to the assessment of the gravity of the potential emergency facing Ms Tyrell, in May of 2017, and are obviously relevant to whether the children’s unilateral relocation, to another state, was a proportionate response to the degree of risk arising.

15. On the other hand, it is also obvious to me that Mr Hornwood clearly told Ms Tyrell that he did not agree to the children moving to Victoria without his consent.  He was visibly upset during most of the interim hearing.  Accordingly, I am concerned that if I accede to Ms Tyrell’s position, it will signal to her (and other persons potentially in her position) that it is acceptable for a parent to take things into his or her own hands, so far as relocation issues are concerned. 

16. More significantly, I am concerned at the potential implications for the children, if they are unable to have a proper level of relationship with someone who has hitherto been significant to their care, welfare and development, as a consequence of their mother’s unauthorised actions.  For understandable reasons, Mr Hornwood is liable to think that the system is unfair if this is the outcome, which the court endorses. 

17. Fundamentally, at this early stage, I must determine what outcome I consider will be in [X] and [Y]’s best interests, when I have limited and untested evidence available to me and the positions of the parent’s concerned are polarised. 

18. If Ms Tyrell’s evidence is correct, it would be unpalatable to compel the children to come back to South Australia.  On the other hand, if Mr Hornwood’s evidence is correct, it would be equally unpalatable for the children’s relationship with him to be either severed or significantly curtailed as a consequence of the mother’s high-handed actions. 

The legal principles applicable

1. The legal principles applicable are complex.  I will not endeavour to outline them exhaustively.  Rather, given the nature of this truncated hearing, I will attempt to outline the salient ones in abbreviated bullet form.  References in square brackets are to the Family Law Act 1975.

   ·The best interests of the children are the paramount or most important consideration [section 60CA];

   ·The court is to ensure that children have the benefit of both their parents having a meaningful involvement in their lives [section 60B(1)(a)];

   ·Parents are encouraged to agree about future parenting arrangements of their children, including in respect of major long term decisions, which include changes to a child’s living arrangements, which make it significantly more difficult for the child to spend time with a parent [section 60B(2)(d) & (4)];

   ·In determining the best interests of the child, the court must consider two matters primarily, namely:

   oThe benefit to the child of having a meaningful relationship with both of his/her parents; and

   oThe need to protect the child from physical or psychological harm from being subjected to or being exposed to, abuse, neglect or family violence [section 60CC(2)];

   ·The court is to give greater weight to protective concerns [section 60CC(2A)];

   ·The presumption of equal shared responsibility is open to rebuttal, at the interim hearing stage, if it is not appropriate for it to be applied;

   ·In assessing the degree of risk incumbent, in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will its severity, to any individual, particularly any child, who will be potentially affected by it;[3]

   ·In assessing risk, the court must put in place responses which are proportionate to the degree of risk so assessed.  If a risk is unacceptable it should not be accepted. 

   ·Relocation has implications for the quality and intimacy of the parental relationship a child has with the absent parent.  These concerns are particularly pressing in respect of young or immature children;

   ·It is not desirable for long-term arrangements, for a child, to be determined in an abridged interim hearing;

   ·As such, it is usually in the best interests of children that issues of relocation be determined, at final hearing, in the context of pre-existing care arrangements, rather than in circumstances which have been engineered to the advantage of one parent, through unilateral actions;

   ·However, in some cases, there may be circumstances of sufficient emergency, which justify unilateral action, by a parent, including relocation; 

   ·In the context of an interim hearing, which necessarily precludes the court from making concluded findings of fact, the court must do its best to assess the degree of emergency confronting the parent concerned. 

   [3]  See Deiter & Deiter [2011] FamCAFC 82

Conclusions

1. This is a difficult and troubling case, for the court, particularly at the interim hearing stage.  All cases involving relocation issues are complex and as such require close and delicate analysis.  Such a degree of analysis is not available at the interim stage.  For these reasons, the court must be careful not to pre-empt the ultimate decision of the court.

2. In particular, I must be careful not to attempt to second guess, what is the truth or otherwise of the concerning allegations made by each of the parties against the other – the mother that the father is a violent and damaged person; the father that the mother is a disingenuous and manipulative person, who will do or say anything to get her own way.

3. However, at the same time, I cannot ignore these issues on the basis that they cannot be satisfactorily resolved at this stage of the proceedings.  The reality is that each party’s position may well ultimately prove to be the correct one.  The court has, however, at this stage, no way of ascertaining which party’s account of their relationship is the more truthful one.  Rather the court must attempt to assess potential risk arising for the children in two disparate and distinct forms. 

4. The risk of the children losing a potentially worthwhile relationship with their father, on the basis of erroneous allegations of family violence and unjustifiable parental self-help; as opposed to the risk of the children being exposed to a violent parent and their primary custodian being returned unwillingly to an unsatisfactory and unsafe environment.

5. Essentially, both the father and the mother approach the case from the competing poles arising in section 60CC(2), which contain the primary considerations relevant to a child’s best interests.  On the one hand, Mr Hornwood asserts that the children may very well lose the benefit of having a meaningful level of relationship with him, if the court endorses the mother’s unilateral relocation. 

6. On the other hand, Ms Tyrell asserts that the move was justified by considerations relating to the protection of the children from being exposed to family violence and abuse emanating from their father.  As previously indicated, protective concerns are to be given pre-eminence.

7. In my view, at this stage, it is incumbent upon the court, as best it can, to examine the situation, which confronted Ms Tyrell, in May of 2017, when she made the decision to move to Victoria.  In this context, the court must determine whether the urgency of her situation was such that there was no viable alternative open to her other than to move [X] and [Y] far away from their father.

8. At this stage, I am satisfied that it is more likely than not both children know their father well.  The mother concedes that the children have interacted with their father regularly – Ms Tyrell concedes at least two times a week.  It is, after all, her case that she remained living in South Australia, for several years, so that the children could have a relationship with their father and she hoped that he would mend his ways. 

9. At this stage, there is no independent and objective evidence to support the mother’s allegation that the children are currently fearful of their father.  It also appears to be the case that the children have spent regular periods of time with their paternal grandmother, who lives in [Town C].  Ms Tyrell does not appear to get on particularly well with this person.  However, although the lady in question has not provided any affidavit evidence, it seems more probable than not that she is interested in the care of the children concerned [see section 60CC(3)(b)(ii)].

10. I appreciate that it is not necessary for a parent alleging family violence to provide corroboration that he or she (or the children concerned) has actually been exposed to family violence before the court is required to consider protective options for the family violence.  Family violence is insidious in its nature and very often occurs in private, resulting in its independent verification being problematic.  Accordingly, the court is mandated to give close consideration to all allegations involving family violence.

11. In this case, the evidence as to what happened between the parties on 2 May 2017 is not at all extensive.  Ms Tyrell does not depose to some serious episode, which necessitated the involvement of the police and her removal from the state for her own protection.  Mr Hornwood has not been arrested.  There is no evidence to indicate his alleged drug use has previously resulted in police involvement.

12. In fact, there appears to be no prior history of extensive police involvement with the family.  The family violence orders, obtained by the mother, appear to have been granted, on an ex parte basis and to have arisen after she left South Australia.  As such, Mr Hornwood was not given an opportunity to be heard prior to their making.  No positive finding of violence has, as yet been made [see section 60CC(3)(k)].

13. In my view, it would have been open to Ms Tyrell to obtain a family violence order naming Mr Hornwood prior to her departure from the state.  This is likely to have provided some level of security to her and the children in the short to medium term, given the fact that previously she had not sought any such protection.  She does not assert that given the level of threat from Mr Hornwood such orders are or have previously proven to be ineffective.

14. If what she asserts is true, she had been able to manage her relationship with Mr Hornwood for a period well in excess of two years, following their separation, without the need for a family violence order.  This does not seem to me to be indicative of an extreme level of threat to her and the children.

15. In addition, the evidence available to me, at this stage, indicates that prior to May of 2017, both children were well settled in the [Town A] area, both in terms of their education and friendship groups, as well as in respect of their relationship with their father.  In these circumstances, Ms Tyrell’s decision to move them to Western Victoria is a very significant one, which must have obvious implications for their relationship with their father and other of their paternal relatives [see section 60CC(3)(d)].

16. The decision to move the children to Victoria can only be characterised as a major long term decision.  Mr Hornwood unequivocally indicated to Ms Tyrell that he wished to be involved in the making of the decision concerned and did not agree to any move.  The mother clearly rebuffed the father’s expectations in this regard.  There is no evidence to indicate that Mr Hornwood has signalled his lack of interest in the children or that he does not wish to spend regular time with them [see section 60CC(3)(c)].

17. In my view, the evidence indicates that Ms Tyrell has not managed her wish to move particularly well.  At this stage, the assessment, which I have reached, is that she had a growing dissatisfaction with her life in [Town A] and wished to move.  The primary motivations for the move were financial and so that she could be closer to her family.  These are understandable and rationale motivations. 

18. However, she knew Mr Hornwood was unlikely to give his consent to the move.  In these circumstances, it seems to me more likely than not that she wished to present him with a fait accompli, which would not be able to be easily reversed, at a later stage.  Accordingly she decided to move come what may in the hope that Mr Hornwood would not take any action notwithstanding his intimation to her that he would.

19. In these circumstances, I do not consider that Ms Tyrell personally faced a situation of such emergency that her relocation of the children to Victoria can be subsequently authorised by order of the court.  In my assessment, the nature of her action was disproportionate to the level of threat facing her.  She was aware that Mr Hornwood did not agree to the move.  As such, to a very large extent, she elected to go ahead with the move at her peril. 

20. Neither Mr Hornwood nor Ms Tyrell can be regarded as financially well-resourced individuals, Ms Tyrell particularly so.  In these circumstances, her decision to move interstate with the children must have serious implications in respect of how easily and frequently the children can interact with their father in future.  These considerations are particularly germane, given the tender ages of [X] and [Y] [see section 60CC(3)(e) & (g)].

21. These are also factors which militate against the relocation issue being pre-emptively determined at the interim stage.  The mother has no clear proposals as to how the children will interact with the father in the short to medium term, other than that it should be subject to as yet undetermined professional supervision, presumably somewhere in Western Victoria.  In my view, it is striking that, prior to her unilateral relocation, she did not see the need to seek such supervision of the children’s time with their father.

1. All of these factors are, to my mind, more indicative of a situation in which Ms Tyrell was of a mind to move because she wished to do so rather than that she was fleeing an immediately abusive and dangerous situation.  In these circumstances, given Mr Hornwood’s immediate and unequivocal objection to the move, there were obvious avenues open to her, other than moving interstate to deal with her situation.

2. She could have sought some form of cheaper accommodation; she perhaps could have kept her existing accommodation, whilst pursuing a formal application to relocate; certainly she could have sought independent legal advice in respect of the issue and opened up formal lines of communication with Mr Hornwood in respect of the issue, with a view to some provisional accommodation being reached.  Rather than do this, she peremptorily elected to move.

3. I appreciate that Ms Tyrell’s financial circumstances were likely to have been straitened and the family resources available to her in Western Victoria have the potential to ease her financial pressures.  However, given the unilateral nature of her action, in the face of Mr Hornwood’s opposition, these factors are insufficient, in my view, to justify the move.

4. It is extremely regrettable that one of the consequences of the move is likely to be the intensification of financial pressures on the parties, rather than their diminution.  It is a sad fact that frequently, in interim relocation cases, the party who has moved, often very far away from the other parent concerned, asserts that notwithstanding the existence of resources to move in the first place, he or she does not have the resources to return. 

5. In my view, the court must be careful of using such financial rationales to justify retrospectively unilateral activities on the part of parents.  Such actions do not sit easily with the theoretical underpinning of the Act, which encourage parents to make joint decisions in respect of major decisions pertaining to their children.

6. In all these circumstances, I have come to the conclusion that Ms Tyrell is to be directed to return the children’s place of residence from Victoria to a location within 45 kilometres of the [Town C] Town Hall within 42 days of today’s date.  This, in my view, is an adequate period of time for her to make the necessary arrangements to finalise her affairs in Victoria on at least a provisional basis, pending the outcome of the substantive proceedings.

7. I will also order that the parties’ competing applications be fixed for final hearing at the earliest date available to the court.  I will direct that the parties also attend a child dispute resolution conference on a date to be arranged following the mother’s return to South Australia, on which occasion, the parties can discuss, with the assistance of a family consultant, on-going parenting arrangements for the children.

8. I appreciate that it will be financially difficult for the mother to have to return to South Australia.  However precipitate actions, particularly in respect of family law issues, invariably have invidious consequences.  The court must be careful not to endorse self-help other than in exceptional and extraordinary circumstances of emergency.

9. I will hold Mr Hornwood to his undertaking that he will provide financial support to Ms Tyrell upon her return to South Australia.  I accept that he is not well off financially, but he is significantly better resourced than Ms Tyrell.  I will direct that he provide her with a lump sum of $500.00 on her return to South Australia and thereafter the sum of $150.00 per week towards her rent for a period of six months.

10. I will list the matter for further hearing, following the mother’s return to South Australia, so that appropriate orders can be made for the father to interact with the children, upon receipt of a memorandum of advice from the family consultant who convenes the relevant conference.

11. I appreciate that Ms Tyrell will be disappointed with the outcome of these proceedings.  In this regard, she must bear in mind that this is a provisional outcome of the case.  In due course, if she wishes to do so, the court will consider her application to move interstate with the children together with any opposing application from Mr Hornwood.  

12. In my view, in the difficult and controversial circumstances, which arise in respect of very many family law disputes, adherence to proper procedure provides a protection to all concerned, including any children affected.  There are important public policy considerations mandating that significant issues arising in respect of children be properly, thoroughly and fairly ventilated.

13. The forum of a final hearing will allow the court to give proper consideration to the rights and obligations of all those individuals, particularly [X] and [Y], who will have to live with the consequences of the decision regarding where and with whom the children will live in future.  It is not in the children’s interests that these decisions are made hastily on the basis of the precipitate actions of one parent alone.

14. 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 ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     21 July 2017