INGLEBY & TORNEY

[2017] FCCA 524

FEDERAL CIRCUIT COURT OF AUSTRALIA

INGLEBY & TORNEY [2017] FCCA 524

Catchwords:
FAMILY LAW – Interim parenting orders – best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D

Cases cited:

Goode & Goode (2006) FLC 93-286
Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348
SS & AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654

Banks v Banks [2015] FamCAFC 36

Salah & Salah [2016] FamCAFC 100

Applicant: MR INGLEBY

Respondent: MS TORNEY

File Number: PAC 1953 of 2013

Judgment of: Judge Newbrun

Hearing date: 30 January 2017

Date of Last Submission: 15 February 2017

Delivered at: Parramatta

Delivered on: 23 March 2017

REPRESENTATION

Solicitors for the Applicant: Higgins Lawyers

Solicitors for the Respondent: Mahony Family Lawyers

Solicitors for the Independent Children’s Lawyer: Bell Lawyers

ORDERS PENDING FURTHER ORDER

1. All previous parenting orders in relation to the children be discharged.

2. The children live with the mother.

3. The children spend time with the father from Friday 6PM to Sunday 6PM on a fortnightly basis, but that such time not commence for a period of one month from the date of these orders.

4. During the above period of one month, and thereafter, the children shall have FaceTime with the father on the following days and times subject to the following conditions:

   (a)Each Monday, Wednesday and Saturday (on those Saturdays when the children are not spending time with the father) between 4:30 PM and 5 PM;

   (b)For the purpose of facilitating time, the mother shall telephone the father on his mobile at 4:30 PM and ensure the children are available to communicate with the father;

   (c)For the purpose of FaceTime it is noted that the younger children will likely require assistance in operating the phone and that due to the children’s ages they may not be interested in FaceTime for a full 30 minute period.

5. During the time the children spend with the father, the father shall supervise the children and not leave the children, or any of them, unsupervised or in the care of any member of the paternal family.

6. Each party is restrained from denigrating the other party in the presence or hearing of the children and shall not permit any third person to denigrate the other parent in the presence or hearing of the children.

7. Each party is restrained from physically disciplining the children, or any of them, and each party shall not permit any third person to physically discipline any of the children, whilst they are in the respective care of the parties.

8. The mother shall have sole parental responsibility in relation to all school decisions for the children.

9. Within 48 hours of the mother making a sole parental responsibility decision in relation to the children’s schooling, the mother shall notify the father of the decision.

10. The mother is restrained from relocating the children’s residences outside the Sydney metropolitan area.

11. The father shall collect and return the children from and to the mother respectively at a McDonald’s family restaurant to be selected and advised by the mother to the father, or otherwise pursuant to the agreement of the parties, and such a changeover venue to be advised by the mother to the father within 7 days of the date of these orders. The father shall not be accompanied to such changeovers by a relative against whom there is a current Apprehended Domestic Violence Order where the mother is a protected person.

12. Pursuant to section 13C of the Family Law Act1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of Uniting Counselling and Mediation Unifam, (omitted), for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:

    a.  Attend at such times, dates and places as may be advised; and

    b.  Pay such fees as may be charged;

    to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.

.In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1953 of 2013

MR INGLEBY

Applicant

And

MS TORNEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This interim hearing related to the children X born (omitted) 2010, Y born (omitted) 2012, and Z born (omitted) 2014 (“the Children”).

2. The parties married in (omitted) 2009 and separated on 15 June 2016. At separation, the two youngest children lived with the mother. The eldest child, the parties’ son, remained living with the father.

3. Pursuant to the consent interim parenting orders of the Court dated 27 September 2016, the two youngest children have been spending supervised time with the father through Connecting Families. The mother, for her part, pursuant to those orders, has been spending supervised time with the son, also through Connecting Families.

4. The fathers amended interim parenting proposals are set out in Exhibit B:

   a)the mother should be restrained from relocating the children’s residence outside the Sydney metropolitan area;

   b)provided the mother complies with such restraint, the children should live with the mother;

   c)the parents should have equal shared parental responsibility for the children;

   d)the children spend time with the father from 6 PM Friday until 6 PM Sunday each week, provided that the father supervises the children, and does not leave the children, or any of them, unsupervised or in the care of any member of the paternal family;

   e)changeover is to occur at the mother’s home; the father is at liberty to telephone the children each Monday and Wednesday between 4 PM and 4:30 PM;

   f)each party is restrained from denigrating the other party in the presence or hearing of the children, and shall not permit any third person to denigrate the other parent;

   g)the parties are restrained from physically disciplining the children, or either of them, and shall not permit any third person from physically disciplining any of the children

5. The mother’s interim parenting proposals are set out in her Amended Response filed 13 January 2017: (inter-alia)

   a)the mother be permitted to relocate to Melbourne, Victoria with the children;

   b)the mother have sole parental responsibility for the children;

   c)the children live with the mother;

   d)the children shall not spend time with or communicate with the father.

6. As an alternate proposal, in the event that the Court orders the children to live with the mother, the mother proposes that she have sole parental responsibility in relation to all school decisions for the children, and that within 48 hours of the mother making a sole parental responsibility decision in relation to the children’s schooling, that the mother notify the father of the decision (see Exhibit C).

7. The above alternate proposal, Exhibit C, was made by the mother in circumstances where the Court informed the parties, at a later mention of the matter on 15 February 2017, that it was considering, without having decided, an interim order that the children live with the mother in Sydney, and noting the mother’s evidence that she resided in Sydney about 1.5 hours by public transport from the eldest child’s present school at (omitted), and where the mother did not drive a car.

8. The Court notes that the ICL submitted that it was premature to consider the mother possibly relocating the children’s residences to Melbourne, there was insufficient evidence presently before the Court, and that such an issue should be dealt with at a final hearing.

Material relied upon by the parties

1. The father’s material was set out in his Case Outline dated 28 January 2017, at page 2.

2. The mother’s material was set out on page 1 of her Case outline dated 29 January 2017, and she also relied upon her Affidavit filed in Court on 30 January 2017.

3. The parties and Independent Children’s Lawyer also relied upon the discrete subpoenaed material from NSW Police (sleeves 1 and 2), (omitted) School, (omitted) Hospital and FACS.

Agreed or undisputed relevant facts

1. In about March 2011, the mother and the child X (referred to as X in these Reasons) relocated to Australia to reside with the father and his family.

2. In about March 2013, the mother and the two eldest children travelled to Melbourne to live with the mother’s brother. Later, a recovery order was issued following the father commencing proceedings, and the mother and children returned to Sydney. They recommenced living in the father’s home in about December 2013.

3. On 15 June 2016 the parties separated, with the parties’ son remaining living with the father, and the two youngest children and the mother commenced to live elsewhere.

4. The mother has been the primary carer of the children since their birth to the date of separation. Thereafter, she continued to be the primary carer of the two youngest children. The Court also notes that the paternal extended family, prior to the separation, would take the children to school and to medical appointments.

5. During the parties’ relationship, the father worked full-time as a (occupation omitted) of his father’s (business omitted).

6. Following the separation, the mother did not spend time with the eldest child until the implementation of the interim consent parenting orders of 27 September 2016. Similarly, following the separation, the father did not spend time with the two youngest children until implementation of those orders.

7. For at least a significant time during the parties’ relationship, there were members of the father’s paternal family living in the party’s residence, including the paternal grandparents.

8. The eldest child attends the (omitted) School at (omitted). He completed kindergarten in 2016. He has many cousins who also attend the school. The child Y is due to commence her schooling in 2017.

9. In the mother’s Affidavit filed 13 January 2017, she states that she recently was approved for a three-bedroom home for a period of two years, and in two weeks will take up residence in that home.

10. The father’s residence is at (omitted) near (omitted).

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at [100] their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

3. Of this, the Full Court in Eaby & Speelman (2015) FLC 93-654 said at 80, 332:

   [80] As would be immediately apparent, this approach enables 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.

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks v Banks (2015) FamCAFC 36, especially at paragraph 46 to 52.

5. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

6. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

7. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

8. When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA (3).

9. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

10. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

11. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

12. In relation to relocation legal principles, the court refers to Adamson & Adamson (2014) FLC 93-622, in particular at paragraphs 64-79, and re-affirmed in Vontek & Vontek [2017] FamCAFC 28.

The Best Interests of the Children

Section 60CC Considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration.

1. The children have a meaningful relationship with both parents. The children would benefit by a continuance of their relationship with the mother. The children would benefit by a continuance of their relationship with the father provided that during any time spent by them with the father there is no denigration of the mother.

2. The Court notes that the Family Consultant, from the Child Inclusive Conference of 12 December 2016, expressed her concern that the eldest child, having enjoyed his time spent with the mother and his siblings at the conference, overall presented as conflicted and strongly aligned with the father.

3. Nevertheless, the Court refers to the Connecting Family’s reports from 7 October 2016 to 21 October 2016, relating to the children’s positive supervised time spent with each of the parents; in particular, the Court notes the eldest Child’s positive interactions with the mother. The Court also refers to the children’s positive interactions with each parent at the Child Inclusive Conference. Accordingly, the eldest child’s apparent alignment with the father may well be something less than a strong alignment.

4. Historically the father appears to have been a regular presence in the children’s lives, noting the mother’s evidence that during the relationship the father would return home from his full-time work at about 4:30 PM and occasionally play with the children.

5. At this interim stage, there is a significant risk that the children’s meaningful relationship with the father will be detrimentally affected if the mother is permitted to relocate the children’s residence to Melbourne by reason of the impracticality of the children spending regular time with him in those circumstances. (The Court also refers to its discussion later in these Reasons relating to the mother’s proposed relocation to Melbourne).

6. There is a significant risk that the eldest child’s relationship with the mother and his younger siblings will be detrimentally affected if that child is not reunited with the mother and his siblings and/or that child is exposed to denigration of the mother.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The mother makes allegations against the father that he inappropriately physically disciplined the children during the relationship. In his last Affidavit, the father states that he cares for the children without violence or threats, and that he has done nothing at all to justify being supervised with the two youngest children.

2. The eldest child, when asked by the Child Inclusive Conference Family Consultant as to whether he was scared of anyone in his family, did not nominate the father. The Family Consultant observed all three children to enjoy their time with the father in the playroom at the Child Inclusive Conference.

3. The father told the Family Consultant at the Child Inclusive Conference that the mother had infrequently been physically violent towards the children and that the breakdown of the marriage had been due to the mother’s aggressiveness towards the children. The mother denied she had injured any of the children or had used excessive discipline on them.

4. The father referred to an ADVO for the protection of the eldest child from the mother because she had allegedly stood on his foot, causing it to swell; this provisional order ADVO was made on 1 June 2016 against the mother for the protection of the eldest child.

5. The “Grounds of the Application” for such ADVO state, inter alia, that there was an incident on the 31 May 2016 at the family home. The police refer to the eldest child seemingly becoming uncooperative and not willing to complete his homework and the child has apparently attempted to run from a room and the mother has taken hold of him given his behaviour. At this point the child has sustained an injury to his left foot. The police refer to conflicting versions as to how this injury occurred. Inter-alia, the police spoke with the eldest child who was unable to tell the police how he sustained the injury to his foot. The police stated they were unable to determine how the injury was sustained given the conflicting versions. The police state that at the time of their attendance they did not hold fears for the safety of the child.

1. It is not without relevance, in this context, that the father proposes that the children live with the mother, provided the mother complies with a proposed restraining order that she not relocate the children’s residences to Melbourne.

2. Having considered the competing allegations and evidence in this context, and again noting that the father proposes the children live with the mother, the Court is of the view that there is no need to protect the children from the risk of physical abuse by either parent, however, acting cautiously, the Court proposes to make an interim order restraining either parent from physically disciplining the children whilst in their respective care, and that they not permit any third person to physically discipline any of the children.

3. The mother asserts historical controlling, physically abusive and denigrating behaviour by the father and members of the paternal family towards her, continuing up to about mid-June 2016. The mother asserts that she was verbally denigrated by the father in the presence of the children, and in this context the mother asserts that the eldest child began to address the mother in a derogatory fashion. She asserts that family violence perpetrated against her occurred in the presence of at least one of the children.

4. The father denies perpetrating physical violence against the mother, apart from some pushing of her early in the relationship after the mother had hit him (see his statements to the Family Consultant on 15 August 2013 and the Family Consultant at the Child Inclusive Conference). In his Affidavit filed 27 January 2017, the father makes a general assertion that he has done nothing at all to justify being supervised when spending time with the two youngest children. Further, the father asserts that neither himself or his paternal family speak negatively to the children about the mother.

5. As to the mother’s allegations of physical violence perpetrated against her by the father during the relationship, the Court is unable to make findings of fact at this interim stage, having considered all the material presently before the Court. However, consistent with legal principle (eg see Salah & Salah [2016] FamCAFC 100), the Court does not disregard those allegations.

6. On about 2 June 2016, the mother asserts that in the family home she was assaulted by the paternal grandmother, and she fled the home. The mother asserts that later that same day, members of the father’s paternal family, inter-alia, physically grabbed her and pushed her into the back of a car and took her home. The mother asserts that she fled again but later was forcefully taken back home in similar circumstances by a member of the father’s paternal family.

7. On or about 15 June 2016, the mother’s brother attended the family home and there was an incident. The mother asserts that as she sought to take the two youngest children with her from the family home, with the assistance of her brother, members of the father’s paternal family sought to restrain her. The mother’s brother’s Affidavit filed 13 January 2017 is generally supportive of the mother’s allegations in this context.

8. Without proceeding to making findings of fact, the Court observes that the mother’s allegations of controlling, coercive and denigrating behaviour by the father and members of his paternal family towards her, including in relation to the incidents in June 2016, and in the presence of at least the eldest child, are plausible and cannot be disregarded by reason of:

   a)the father’s statements to the Child Inclusive Conference Family Consultant on 12 December 2016 that he had requested his sister to go and grab the mother, who had left the family home, despite asserting that he had not instructed his relatives to use force on the mother, and denying that they had done so, having stated that the actions of himself and paternal family members were justified because of “family respect” in the community;

   b)two members of the father’s paternal family were convicted of common assault upon the mother, and a final ADVO was made against them on 27 June 2016 for 12 months, with the mother being the protected person;

   c)the subpoenaed material relating to members of the father’s paternal family treating the mother in a demeaning manner; for example the (omitted) School subpoenaed documents refer to 2 members of the father’s paternal family insulting the mother at a parent teacher meeting;

   d)The Child Inclusive Conference Family Consultant’s impression of the eldest child at the Child Inclusive Conference being strongly aligned with the father against the mother (subject to the discussion above under the meaningful relationship consideration);

   e)The father’s statements to the Family Consultant on 8 August 2013 when he reported that, when the eldest child had asked the mother for food, he would tell the mother “shame on you, why didn’t you give your son some food.” Further, the parties told the Family Consultant that the eldest child did not call the mother “Mum”, with the mother attributing this fact to the paternal family teaching that child not to call her “Mum”.

   f)The mother’s brother’s Affidavit evidence is generally supportive of the mother’s allegations relating to the incident on or about 15 June 2016.

9. The Court notes the Child Inclusive Conference Family Consultant’s statements and concerns about the children’s psychological well-being when in the care of the father and/or the paternal family were the Court to accept the mother’s allegations of, inter-alia, significant controlling attitudes in the paternal family. In this context, she also expresses concerns as to the children’s relationship with the mother being hampered.

10. Accordingly, at this interim stage, the court is concerned that there may well be a real risk that the children will be exposed to the risk of psychological harm when in the care of the father.

11. In this context, the mother submits, inter alia, that the most appropriate way to minimise the risk to the children of such psychological harm, emanating from the paternal household, is to make an order that the children live with the mother; it is submitted that such an order would mitigate the risks identified by minimising the time spent in the household identified as presenting the risk. There is some force to this submission. (The Court has not overlooked the mother’s further submission that the children should spend no time with the father by reason of the risk the children being exposed to denigration of the mother).

12. In view of the Court, the risk to the children of being potentially exposed to psychological harm when in the care of the father can be minimised, whilst maintaining the children’s meaningful relationship with him, by making protective orders as follows:

    a)that the children live with the mother;

    b)that the children, spend time with the father on a fairly modest basis; such as from Friday 6 PM to Sunday 6 PM on a fortnightly basis, but that such time not commence for a period of about one month to allow the eldest child X to settle into the mother’s care without this placement being undermined (see the recommendation of the Child Inclusive Conference Family Consultant and noting the ICL’s submission in this context). During such period of one month, the children could have telephone and Facebook time with the father (the Court also notes the ICL’s submission in this context);

    c)that during the time the children spend with the father, the father shall supervise the children and not leave the children, or any of them, unsupervised or in the care of any member of the paternal family (this is part of the father’s proposed order 4 in Exhibit B);

    d)that each party be restrained from denigrating the other party in the presence or hearing of the children and shall not permit any third person to denigrate the other parent in the presence or hearing of the children (see father’s proposed order 7 in Exhibit B).

    e)That the parties be referred to a family counselling service under section 13C of the Act.

13. In the event that such interim parenting orders are made, there should be no unacceptable risk of psychological damage to the children in spending such time with the father.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The Court notes the eldest child’s statements to the Family Consultant at the Child Inclusive Conference in relation to the mother and the father, including his wish to live with the father, but also his statement that he misses his siblings and wants to see them. Again, the Child Inclusive Conference Family Consultant expressed concerns in relation to the eldest child’s complex presentation which she opined was conflicted, with the child been aligned with the father. However she also noted, at the same time, there were indications that this child is in conflict between his wish to please the father and the paternal family by joining with them to view the mother negatively, some feelings of sadness and anger towards the mother for leaving with the other children, but an underlying wish to enjoy a relationship with the mother.

2. Ultimately, there is no issue that the three children will live with the mother. In these circumstances, and noting the above observations of the Child Inclusive Conference Family Consultant, the Court has not attached significant weight to the eldest child’s views whilst also noting his fairly young age.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to its discussion above under the meaningful relationship primary consideration.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. Each of the parents would appear to have taken such opportunities.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. Each of the parents would appear to have fulfilled such obligations.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. As discussed previously, there is a significant risk that the children’s meaningful relationship with the father will be detrimentally affected should the mother be permitted to relocate the children’s residence to Melbourne, in particular by reason of the significant geographical distance between Sydney and Melbourne; should the children be residing in Melbourne with the mother, the father’s ability to spend regular time (eg fortnightly time) with the children would likely be curtailed.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. As discussed above, should the children’s residence be relocated to Melbourne, there would likely arise significant practical difficulty and expense in relation to the children spending regular time with the father.

2. There is no comprehensive or clear evidence before the Court at this interim hearing that either party has any significant income or financial resources to allow the children to spend regular time with the father should the mother be permitted to relocate their residences to Melbourne. The mother’s application to relocate the children’s residences to Melbourne is better dealt with on a final basis.

(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

1. The Court refers to its discussion above under the need to protect primary consideration. Subject to the father not causing or allowing the mother to be denigrated in the presence of the children, both parents would appear to have such capacities.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant

1. The Court refers to its discussion above under the meaningful relationship and need to protect primary considerations, and the views of children additional consideration, in particular in relation to the eldest child X.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. Subject to the Court’s discussion above under the meaningful relationship and need to protect primary considerations, both parents would appear to have demonstrated appropriate attitudes to the children and to the responsibilities of parenthood.

(j) Any family violence involving the child or a member of the child's family.

1. The Court refers to its discussion above under the need to protect primary consideration.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.

1. The Court refers to its discussion above under the need to protect primary consideration. The Court notes that final ADVOs were made against each of the paternal grandmother and sister-in-law on 27 June 2016, the protected person being the mother. There had also been a provisional ADVO against the mother for the benefit of the eldest child relating to that child’s foot injury.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. These are interim proceedings.

m) Any other fact or circumstance that the Court thinks is relevant.

1. In relation to the mother’s interim proposal that she be permitted to relocate the children’s residence to Melbourne, the mother states that her brother resides in Melbourne and with whom she apparently has a close relationship. The mother states that she will have her brother’s support in Melbourne. She states that she intends to live with her brother initially in his current accommodation and then to find her own rental accommodation, or to share a house with the brother which is large enough to accommodate both of them and the children.

2. The mother states that her brother is currently employed as a part-time (occupation omitted) at (employer omitted). The mother states that she resided for a brief period with her brother in Melbourne in 2013, prior to being ordered by the Court to relocate the children’s residences back to Sydney.

3. The mother states that her brother has advised her that he is able to assist her financially and also through taking care of the children.

4. The mother states that her only family support in Australia is her brother. All of her other family members reside in (country omitted). She states that if she was ordered to remain in Sydney she would continue to be fearful that the father and his family would stalk and threaten her and would forcefully cause her to return to the home or otherwise forcefully take the children from her. She is concerned that while she is living in Sydney she would not be able to feel safe and secure in her own home.

5. The mother submits that the father is in employment and has the financial capacity to make travel costs to Victoria. The evidence presently before the Court indicates that the father apparently works full-time as a (occupation omitted) of his father’s (business omitted). Again, there is no comprehensive or clear evidence before the Court as to the father’s present financial circumstances.

6. The mother’s brother’s Affidavit filed 2 January 2017 states, inter-alia, that during the previous six years it has been difficult for him to communicate freely with the mother while she has remained living in the same house as the father. For example, when he telephoned the mother on the landline phone, occasionally the father or members of the paternal family would hang up the phone. The brother states that the maternal grandparents had the same difficulties.

7. The mother’s brother refers to his rental property in (omitted), Melbourne (he states that he recently signed a lease) which is a two-bedroom property, “with an option to turn the study area into a third bedroom.” He states there are two bathrooms, kitchen, living area and backyard. He states that he could provide some financial assistance to the mother if she was to relocate to Melbourne, such as assisting with the costs of relocation, rent and bills, school fees or other costs of raising the children as necessary. He states that he could support the mother to build her independence and assist with the care of the children.

8. The mother refers to having received approval for a three-bedroom house in Sydney for a period of two years; in the mother’s Affidavit filed 13 January 2017 she states that she has been advised that she will be able to move into this property in the next two weeks, and she states that the refuge that she has been residing in has organised the lease for her.

9. Should the mother remain living in Sydney with the children, she will be free to communicate with her brother and parents by telephone, although the Court recognises that were the mother living in Melbourne, she would likely have the close physical support of her brother.

10. The mother states that she is in good physical and mental health. She states that the parties do not consume alcohol or illicit drugs.

11. The mother states that she is receiving Centrelink benefits for two children in the sum of about $836 per fortnight. She does not receive child support from the father and she does not pay child support for the eldest child (the Court notes that the mother could pursue an application for child support through the Child Support Agency). Should the mother remain living in Sydney with the children, there would be no impediment to the mother’s brother assisting her financially.

12. As to the mother’s fear that should she be required to remain living in Sydney with the children, the father and his family will cause her to return to the father’s home or forcefully take the children from her, the Court notes that since the Court’s orders of 27 September 2016 there is no evidence that the father or members of his family have taken such steps against the mother. Further, the Court notes that there is a final ADVO against the mother’s sister-in-law Ms B and the paternal grandmother dated 27 June 2016, albeit for 12 months duration.

13. The mother states that if she is not permitted to relocate the children’s residences to Melbourne, she is proposing to enrol the eldest child in a school closer to where she lives if he is returned into the mother’s primary care. She also states that she is making enrolment enquiries for the middle child and she would want that child and the eldest child to attend school together. The mother is considering schools in the (omitted) area.

14. The mother states that she wants the children to do extracurricular activities, such as (hobbies omitted). She states she is not currently in paid employment however once herself and the children are settled in permanent accommodation she would like to commence starting child care and find a job in this (work) area so that she is able to independently provide for the children.

1. On balance, at this interim stage, the Court is not satisfied that it will be in the best interests of the children to permit the mother to relocate their residences to Melbourne. Apart from the above discussed issues relating to the mother’s proposed relocation of the children’s residences to Melbourne, including the significant risk that the children’s meaningful relationship with the father will be detrimentally affected if such proposed relocation is permitted (the Court refers to its discussion above under the primary and additional considerations of section 60 CC of the Act), the Court has also taken into account its proposed measures to minimise the risk of denigration of the mother occurring in the presence of the children. Further, should the mother be given sole parental responsibility in relation to all school decisions for the children, enabling the mother to select schools relatively close to her residence, the burden to the mother of travelling 1.5 hours by public transport to the eldest child’s current school and potentially being exposed to negative behaviour by the paternal family will be likely removed.

Equal shared parental responsibility: section 61DA(1) and (2)

1. The mother seeks an interim sole parental responsibility parenting order. The father seeks an order for equal shared parental responsibility.

2. Again, the Court refers to the mother’s evidence that she resides in Sydney about 1.5 hours by public transport from the eldest child’s present (omitted) school at (omitted), and the fact that the mother does not drive a car. The mother refers to considering schools for the children in the (omitted) area of Sydney, if she is not permitted to relocate their residences to Melbourne. Accordingly, in the event that the children live with the mother, it is impractical to the children to attend schools in the (omitted) area, and further and in any event, there would be a risk of conflict arising in the presence of the children if the mother was to attend and pick up the two eldest children from the (omitted) school at (omitted).

3. On the evidence currently before the Court, the Court has significant doubt as to the parties’ ability to cooperate and reach agreement in a timely fashion in relation to schooling issues, in particular which particular school the children should attend. (The Court notes the most recent Affidavits of the parties indicating there has been in recent times text message communication between them, whilst noting the mother’s assertion that she remains fearful of the father and has only communicated with him to enable her to have communication with the eldest child, who has remained in the father’s primary care).

4. Again the mother’s primary proposal was that she have sole parental responsibility, and in the alternative, she have sole parental responsibility in relation to schooling decisions for the children (see Exhibit C as to the alternative proposal). Exhibit C provided as follows in relation to schooling:

   “1. In the event the Court orders for the child X born (omitted) 2010 to live with the mother, the mother shall have sole parental responsibility in relation to all school decisions for X, Y born (omitted) 2012 and Z born (omitted) 2014.

   2. Within 48 hours of the mother making a sole parental responsibility decision in relation to the children’s schooling, the mother shall notify the father of the decision.”

5. At this interim stage, the Court is of the view that it will be in the best interests of the children to make parental responsibility orders in accordance with Exhibit C.

6. At this interim stage, apart from schooling issues, it is not clear to the Court whether the parties would be able to reach agreement in a timely fashion in relation to other major decisions affecting the care welfare and development of the children, and accordingly, the Court considers it would not be appropriate in the circumstances for the presumption of equal shared parental responsibility to apply. Thus, the Court is not bound to consider equal time nor substantial and significant time, but in any event, an equal time regime, or orders providing for the children to spend time with the father on a substantial and significant basis (as defined by the Act), would not be in the best interests of the children, by reason of the matters discussed above under the need to protect primary consideration, and nor would they be practicable by reason of the mother’s public transport requirements. Should the Court be incorrect in not applying the said presumption, the Court would nevertheless be of the view that it would not be in the best interests of the children to make an order for equal shared parental responsibility for non-school related major decisions by reason of the Court not being satisfied that the parties could reach agreement in a timely fashion on such matters without conflict.

Summary

1. Evaluating the above considerations under section 60 CC of the act, and applying relevant legal principle in relation to the mother’s proposed relocation application as discussed, the Court is of the view at this interim stage that it will be in the best interests of the children to make interim orders as follows:

   1. All previous parenting orders in relation to the children be discharged.

   2. The children live with the mother

   3. The children spend time with the father from Friday 6PM to Sunday 6PM on a fortnightly basis, but that such time not commence for a period of one month from the date of these orders.

   4. During the above period of one month, and thereafter, the children shall have FaceTime with the father on the following days and times subject to the following conditions:

   a) Each Monday, Wednesday and Saturday (on those Saturdays when the children are not spending time with the father) between 4:30 PM and 5 PM;

   b)For the purpose of facilitating time, the mother shall telephone the father on his mobile at 4:30 PM and ensure the children are available to communicate with the father;

   c) For the purpose of FaceTime it is noted that the younger children will likely require assistance in operating the phone and that due to the children’s ages they may not be interested in FaceTime for a full 30 minute period.

   5. During the time the children spend with the father, the father shall supervise the children and not leave the children, or any of them, unsupervised or in the care of any member of the paternal family.

   6. Each party is restrained from denigrating the other party in the presence or hearing of the children and shall not permit any third person to denigrate the other parent in the presence or hearing of the children.

   7. Each party is restrained from physically disciplining the children, or any of them, and each party shall not permit any third person to physically discipline any of the children, whilst they are in the respective care of the parties.

   8. The mother shall have sole parental responsibility in relation to all school decisions for the children.

   9. Within 48 hours of the mother making a sole parental responsibility decision in relation to the children’s schooling, the mother shall notify the father of the decision.

   10. The mother is restrained from relocating the children’s residences outside the Sydney metropolitan area.

   11. The father shall collect and return the children from and to the mother respectively at a McDonald’s family restaurant to be selected and advised by the mother to the father, or otherwise pursuant to the agreement of the parties, and such changeover venue to be advised by the mother to the father within 7 days of the date of these orders. The father shall not be accompanied to such changeovers by a relative against whom there is a current Apprehended Domestic Violence Order where the mother is a protected person.

   12. Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of Uniting Counselling and Mediation Unifam, (omitted), for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:

   a.  Attend at such times, dates and places as may be advised; and

   b.  Pay such fees as may be charged;

   to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.

   In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 23 March 2017