J and W - [2007] FMCAfam 740

FEDERAL MAGISTRATES COURT OF AUSTRALIA

J& W

[2007] FMCAfam 740

FAMILY LAW – Children – interim – unilateral relocation.

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

V v D [2007] FMCAfam 331

Applicant:

Respondent:

File number:

WOC991 of 2007

Judgment of:

Altobelli FM

Hearing dates:

11 & 14 September 2007

Date of last submission:

11 & 14 September 2007

Delivered at:

Sydney

Delivered on:

17 September 2007

REPRESENTATION

Solicitor Advocate for the Applicant:

Ms Luke

Solicitors for the Applicant:

Lukes Law

Solicitor Advocate for the Respondent:

Ms Bailey

Solicitors for the Respondent:

Heard McEwan

ORDERS

The interim application filed 10 September 2007 is dismissed.
The matter be adjourned to 2pm Friday 21 September for mention at W, to enable the mother to consider whether she will return to within 100 kilometres of W Post Office and to enable the parties and their lawyers to discuss the terms of any order for E to spend time and communicate with:
a)Her father if her mother returns to live within 100 kilometres of W Post Office, or
b)Her mother if she does not so return.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed and the Legal Aid Commission of NSW is requested to provide such representation.
The parties provide to the Legal Aid Commission, of NSW, PO Box K847 HAYMARKET forthwith all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.
If the parents obtain a parentage test indicating that E is not a child of the father the mother is given leave to apply before me on 24 hours notice to vacate the orders made in this matter to date.
The parties have liberty to apply on 24 hours notice.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

WOC991/2007

Applicant

And

Respondent

REASONS FOR JUDGMENT

Ex tempore

These are ex tempore reasons in this matter. This case is about E was born on 6 February 2006. She is 19 months old. During her short life she has been the subject of many notifications to the New South Wales Department of Community Services.
Her mother who is 28 years old appears to have been living in P since last month, that is August 2007. She appears to have left Minto in New South Wales some time late in June or early July and moved to Adelaide where she stayed for a period before then moving onto P. It seems uncontroversial that prior to her going to P the Minto area was her home and also that of E and her step-sister B who is 4 years old. The mother says she moved to P to escape family violence including that perpetrated by the father in this case. She also says that she has excellent accommodation in P where she lives with her own father and has a married sister with two of her own children.
E's father who is 33 years old wants her either to live with him or to spend time with him. He describes his relationship with E’s mother as being on and off in the period between mid 2004 and January 2007 when they finally separated. He says that during the time that the relationship was on he was actively involved in E’s life. He agrees that he had not seen E between May 2007 and 4 September 2007.
From the father's perspective, when the mother and E disappeared in June or July he did not know where to find them or how to contact them. His solicitors commenced proceedings in the Local Court at W. He initially obtained a location order and then orders on 23 August 2007 to the effect firstly, a declaration that he is E's father, secondly that E live with him and thirdly, that the mother return E to him by 26 August 2007 failing which a recovery order was to issue.
A recovery order did issue and on 4 September 2007, E was collected by the father from the Australian Federal Police at P airport. On 10 September the mother applied before me to discharge the orders made by the local Court at W and for fresh orders that E live with her and that the father return E to her and further that a recovery order issue if he does not.
The mother's position is that E should live with her in P. The father's position is that if the mother lives within a geographical area where it is possible for him to spend each alternate weekend from 6 pm Friday to 6 pm Sunday with E, then that is the time he wishes to spend with her. If, however, the mother does not live in an area that makes that possible then E should live with him.
These are interim proceedings. The evidence before me consists of the affidavits of the parents, files produced on subpoena by the Department of Community Services and New South Wales police, the oral evidence from M a family consultant who conducted a child dispute conference with the parents on 11 September and oral evidence from an officer of the Department of Community Services Ms P.
There are some preliminary issues I will deal with before identifying and then dealing with the main issues in this case. Orders were made ex parte by a learned local Court magistrate. This is not an appeal from his Honour's decision. It is not a review. They are orders made under the Family Law Act. They are valid and indeed have been enforced. The fact is that E has been with her father since 4 September 2007 as a result of those orders. I cannot change that.
On the basis of the mother's own evidence I am satisfied that she either knew legal proceedings relating to E were on foot or should have known from the information available to her that this was the case. She chose to ignore this and thus actively contributed to the very unsatisfactory events relating to E’s recovery by the Australian Federal Police. It was only this very drastic intervention by law that led the mother to involve legal process to assist her and E. The mother raises very strongly issues about paternity. She says the father is not E’s father at all. That is her explanation for why her application offers no time with the father. There is an order declaring the father to be E’s father. She says I ought to set it aside and order parentage testing. I will certainly give the parents an opportunity to do parentage testing if they so desire but I do not propose to set aside that order for now. A detailed review of the documents produced by the Department of Community Services and New South Wales Police indicate that the mother did not consistently dispute the father's paternity of E until relatively recently. Indeed, the older the record the more likely it is that one finds no reference to paternity issues raised by the mother. My overall impression of the evidence is that the mother has avoided dealing with the paternity issue until now.
It is also apparent that the mother's move to P is something she has been planning for several months before its implementation. The Department of Community Services' file contains several references to the mother's plan to move to P but it is clear that when she did leave she left suddenly, certainly not telling the Department of Community Services or her landlord and certainly not telling the father.
This matter came before me on Tuesday 11 September 2007 during my circuit to W. I was of course fully listed with trials for the entire week. I listed this matter at 9 am and directed the parties to attend a child dispute conference with family consultant M with the mother to participate by telephone as she was in P and the father in person.
After the production of a Child Dispute Conference memorandum I heard submissions later in that day. After hearing submissions I remained deeply concerned about this matter and completely unsatisfied about the conflicting evidence. I stood it over to Friday 14 September and granted leave to issue subpoena on short notice. At 2 pm on 14 September the matter resumed. I gave both parties opportunity to inspect subpoenaed material as well as taking time to inspect the material myself. The matter concluded at 5.10 pm on Friday the 14th. I reserved. I made some orders for E to spend time with the mother over the weekend provided she is not removed from New South Wales.
The issue I have to decide on an interim basis is what is in the best interests of E. That simple statement masks enormous complexity and deep dilemmas. If I make the orders sought by the mother I have grave concerns that E will never see her father again. If I make the orders sought by the father either E’s mother will be forced to return to New South Wales or alternatively E will remain living with her father and I would have grave concerns about her then maintaining a relationship with her mother.
My approach to answering the question about what is in E’s best interests in this difficult case is to use s.60CC of the Family Law Act as the framework.
Section 60CC(2)(a) sets out the first of the primary considerations and that is the benefit to the child of having a meaningful relationship with both of the child's parents. Before 4 September 2007, E was cared primarily by her mother. Since then she has been primarily cared for by her father. As Family Consultant M explained in evidence, E’s memory is a short one. Indeed she needs to see both parents frequently. For all practical purposes viewed as at today's date she has a meaningful relationship with both parents and there is obvious benefit to her of that meaningful relationship. From E’s perspective, the last two weeks amount to most of her lifetime that she can remember. She has not forgotten her mother, even though her attachment to her has been interrupted. She is bonding or attaching to her father and to remove her now would interrupt that. The only way I can give E the chance to have a meaningful relationship with both parents is if I make an order that at least in the short term is least likely to interfere with that.
If I allow E to return to P with her mother this interrupts her attachment to her father. If E’s mother chooses to go back to P without Ethat interrupts her attachment to her mother. If E’s mother remains reasonably close to where the father is living then E gets the benefit of a meaningful relationship with both her father and mother.
Section 60CC(2)(b) is the second of the primary considerations and it refers to the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The subpoenaed material enables me to find that for all of E’s short life she has been exposed to harm or the risk of harm arising out of neglect and family violence. The evidence plainly indicates that the father has been violent and has struggled with drug and alcohol issues. The evidence also plainly indicates that the mother has been involved in drugs, alcohol and possibly prostitution to finance her drug habits.
The Department of Community Services was patently concerned about E and her sister's exposure to all of these issues and the records indicate that E has been a child at risk right up until DOCS closed their file when discovering that the mother had moved to P.
In an ex tempore judgment being delivered at 9 am on the Monday following a hearing that ended on 5.10 pm on the preceding Friday I cannot detail all of the evidence that can be marshalled by reference to this primary consideration. All I can say is that at an interim level an overview of the evidence indicates that when the parents were together family violence was common including in E’s presence. Even when the parties were not together there was a real risk that E was being neglected because of the mother's drug and alcohol issues.
Whilst the father's evidence minimises the seriousness of violence he at least acknowledges he has a drug and alcohol problem and he says to the Court that he is trying to deal with it. He produces evidence that since May this year he has been seeking assistance with substance abuse issues at the Drug and Alcohol Community Adult Team at Illawarra Drug and Alcohol Service which is attached to PK Hospital. He attended and completed the Relapse Prevention Course in June 2007. He attends individual counselling. He has also successfully completed a Life, Social and Relapse Prevention Skills course at the OW Management Unit in July 2007. He acknowledges that he has a substance abuse problem and presents evidence to indicate how he is dealing with it.
By contrast, the mother's evidence tells me nothing at all about her extensive involvement with DOCS, their concerns about E and B or the drug and alcohol issues she herself seems to have been involved in. She does not tell the Court, for example, that as recently as June she was required by DOCS to undergo random urine analysis. The mother's case is that she is fleeing violence and that's why she went to Western Australia. Indeed, the parents' relationship does appear to have been a violent one. The current AVO was made on 13 February 2007. The police documents confirm this. There appear to have been at least one and possibly other incidents involving both parents in April 2007 that have not led to further action against the father. Event number E30235458 is particularly disturbing. I cannot incorporate that report verbatim in these ex tempore reasons. The mother and the father were clearly fuelled by alcohol in this dispute.
Family violence is inexcusable but so is child neglect. The common feature for both parents is that the father's violence and the mother's neglect were both fuelled by alcohol and drugs. I regard this as a reasonable overview of the subpoenaed material. The difference between the parties in this case is that the father has been forthright in acknowledging the problem and the mother has not. The DOCS officer who gave evidence indicated the department was not concerned about the welfare of the children now that the mother has moved to P. However, there is no evidence to indicate they are concerned about E with the father and he asserts that they have already been around to visit. Overall, the DOCS officer's evidence was unhelpful. She seemed to minimise the neglect issues by the mother and her drug and alcohol issues. She was predominantly concerned about protecting the mother and the children from family violence and seems to have advised the mother to get out her current home at Minto. She regarded moving to Western Australia as an option for the mother. The mother's case presents this in a very different context. She says DOCS wanted her to move to Western Australia where she had support but the DOCS officer made it clear that they wanted that she move out of Minto.
E is a child at risk here in New South Wales. That ensures that at the very least DOCS will keep an eye on her family. In Western Australia, even though the mother claims to have the support of her father (in respect of which I have no evidence at all), there is no safety net of a state child protection authority that knows this family well. If E remains in New South Wales at least for the time being whilst a further investigation takes place there is a surer safety net. For the time being I am satisfied that E is safe with her father. His evidence, and that of his sister, satisfies me she will be safe. The only issue is what the mother does in terms of relocating to P.
A consequence of this finding is its impact on the presumption of equal shared parental responsibility in s.61DA. This was not dealt with by the Local Court Magistrate. Under s.61DA(2) there are grounds to find that the presumption has been negated due to family violence perpetrated by the father. Under s.61DA(4) there are grounds to find that the presumption has been rebutted as a result of the concerns I have about the mother's neglect of the child. On balance, I think that the presumption should remain intact, at least on an interim basis because of the concerns I have in relation to both parents.
Section 60CC(3)(b) talks about the nature of the relationship of E with each of her parents and other persons. I do not have much evidence about this of any objective kind. Each parent says they have a close relationship with E. Experience indicates that even in dysfunctional families wrought by issues of violence, drugs, alcohol and neglect, children appear to be resilient in terms of the relationships they form with their parents and siblings. If E goes back to P she resumes a good relationship with her mother and B but for all practical purposes loses her relationship to her father, and that is a concern. If on an interim basis E stays here and her mother and B returns to New South Wales for a relocation hearing all significant relationships are maintained.
Section 60CC(3)(c) refers to the willingness and ability of each of the child's parent to facilitate and encourage a close and continuing relationship between the child and the other parent. The mother's actions in unilaterally moving to P indicate a lack of willingness to do this as regards the father. I recognise her desire to flee family violence and the attraction that P has in this regard but she should have relied on legal process and she has not turned to legal process until a regrettably late stage in these proceedings.
Section 60CC(3)(d) refers to the likely effect of any changes in the child's circumstances including the likely effect on the child of a separation from parents or other children. This consideration weighs very heavily on me. There have been enormous changes in E’s life to date. E is not a rag doll to be tossed from one side of this continent to another. Both parents have contributed to this awfully destabilising situation in which E finds herself. Let me make it very clear, both parents have contributed to this situation.
Pending a final hearing the order that will hopefully minimise further changes for E is an order that says she lives with her mother in New South Wales provided the mother will do that. At this stage, however, the present situation is not of my making and I cannot inflict further change on E by sending her back to P.
Section 60CC(3)(e) refers to the practical difficulty and expense of a child spending time with and communicating with a parent. There is every indication on the facts of this case that both parents are poor. Neither can afford the cost of transcontinental travel for spending time with E. The tyranny of distance in this case is too great and that is why I have said that in my opinion the reality is that if E goes to P her father will never see her again. I believe there is a high risk of this. If the mother stays here at least for the time being the problem is overcome. I recognise she needs to be protected from family violence and I believe that that can be done. She has had the support of the Department of Community Services in the past. I suspect she will have it again, both in the short term and the long term.
Section 60CC(3)(f) refers to the capacity of each of the parents to provide for the needs of the child. At an interim level there are real concerns about both parents but on balance I am satisfied the father is trying to address his issues. The concerns apply equally to both parents.
Section 60CC(3)(j) and (k) refer to family violence and I have dealt with it above. It is a significant issue in this case and at a final hearing it may well be the determinative issue.
Section 60CC(3)(m) talks about any other fact or circumstance that the Court thinks is relevant. In this case one cannot ignore the fact that the substantive issue this Court will need to determine is whether a parenting order should be made the effect of which is that the child be allowed to relocate to P with her mother. What the mother did was in effect to undertake a unilateral relocation with Eto P.
I incorporate into these reasons paragraphs 7 to 9 of my reasons in a matter called V v D [2007] FMCAfam 331. I propose to simply read a short extract of that at paragraphs 8 and 9:
The existing case law, the existing authority, being the Full Court's decision in Campbell v Spalding (1998) FamCA 66 was still good law not withstand the changes to Part VII of the Act. The relevant passage of the Full Court in Campbell v Spalding is this:
In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children such as relocation being determined by a Court without the impediment of the situation of recent development which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents from what it or they may have been immediately beforehand.[1]
[1] Campbell v Spalding (1998) FamCA 66
Wilson FM makes the following comments about that passage:
Thus a party cannot relocate unilaterally and thereupon use that fact which he or she has created to either justify relocation or more relevantly on the present application, as an impediment to the children spending time with the other parent.[2]
[2] B & B (2007) FMCA Fam 82 at 28

It may well be that at a final hearing the mother's application will be successful but that decision if it is made will be made with the benefit of much better evidence than I have available to me to date. The significance of family violence in a final hearing may well be great indeed and may outweigh concerns about the mother's neglect of the children and her often risk taking behaviour. Time will tell. For my part, should the mother wish to litigate the substantive issue I will expedite the hearing of the matter.
I frankly acknowledge that if the parents decide to do parentage testing then all of the above concerns become quite academic. Until then the orders made by the Local Court Magistrate stands. Accordingly I conclude that on an interim basis if the mother returns within 100 kilometres of the W Post Office, E should live with her and spend time and communicate with her father but if the mother will not so return then E should remain with her father and spend time and communicate with her mother on a basis to be agreed before Friday. Failing that, as ordered by me.
The purpose of adjourning this matter to Friday is to enable discussions to take place between the parties and their legal representatives to ascertain what exactly the mother's intentions are and thereafter to make appropriate order for E to spend time with either parent, depending upon the mother's decision.
I grant leave to restore this matter to my list on 24 hours notice and I intend to order a transcript of these ex tempore reasons and make a written copy available to the parties and to the independent children's lawyer at the earliest time.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate:

Date: