Jacobsen and Mohr

[2017] FCCA 642

FEDERAL CIRCUIT COURT OF AUSTRALIA

JACOBSEN & MOHR [2017] FCCA 642

Catchwords:
FAMILY LAW – Children – family violence – unilateral relocation – interim hearing.

Legislation:

Family Law Act 1975, s.60CC

Cases cited:

Morgan & Miles (2007) FLC 93-343

Applicant: MS JACOBSEN

Respondent: MR MOHR

File Number: ADC 3075 of 2016

Judgment of: Judge Kelly

Hearing date: 10 March 2017

Date of Last Submission: 6 March 2017

Delivered at: Adelaide

Delivered on: 10 March 2017

REPRESENTATION

Counsel for the Applicant: Ms O'Keefe

Solicitors for the Applicant: Franklin Legal

The Respondent father in person:

Counsel for the Independent Children's Lawyer: Mr Roberts

Solicitors for the Independent Children's Lawyer: Southern Vales Legal

ORDERS

1. The mother return the child X born (omitted) 2016 to live in the metropolitan area of Adelaide no later than 30 June 2017.

2. X spend supervised time with the father with visits to take place on a fortnightly basis at the (omitted) Children's Contact Centre.

3. The parties register with the (omitted) Children's Contact Centre within 14 days NOTING that visits shall not commence until July 2017 when X has returned to live in Adelaide.

4. Each party must:

   (a)contact the (omitted) Children's Contact Centre within 14 days to arrange an appointment for assessment for suitability for supervised contact;

   (b)attend the assessment;

   (c)comply with any appointments made by the Contact Centre for supervised contact;

   (d)comply with all reasonable rules of the Contact Centre; and

   (e)comply with all reasonable requests or directions of the staff of the Contact Centre, including any request to vary handover times and/or handover location.

5. If following its intake procedure the (omitted) Children's Contact Centre is unable or unwilling to provide supervision, then either party or the Independent Children’s Lawyer shall have liberty to restore the matter to the list on seven (7) days written notice to the other party and to the Court.

6. The parties obtain a report from the Children’s Contact Centre at the completion of six (6) visits with the father to meet the costs associated with the report.

7. Each party notify the Independent Children’s Lawyer of the nominated dates of supervised time, with the Independent Children’s Lawyer to advise the Court in writing in the event the Children’s Contact Service Report will not be available prior to the adjourned hearing date.

8. Each party is restrained from:

   (a)abusing, criticising or denigrating the other parent in X’s presence and from allowing any other person to do so;

   (b)from abusing, threatening or intimidating the other parent; and

   (c)from posting any material relating to these proceedings or the other party on Facebook or any other social media website.

9. The father is restrained from using or consuming any illegal substances for a period of 24 hours prior to and during anytime that X spends in his care.

10. The father  participate in random urine drug screen testing on no more than one occasion per month as requested by the Independent Children’s Lawyer on the following conditions:

    (a)the father do within 24 hours of a request being made submit to a urine test for the presence of illegal drugs and/or substances and for the purposes of such testing the provision of the urine sample is to be personally supervised and observed by a qualified medical practitioner or their authorised delegate in accordance with the chain of custody protocol specified in AS/NZ 4308:2008;

    (b)the Independent Children’s Lawyer do forward a written request to the father or his legal representatives;

    (c)the father submits to the said tests within 24 hours of the said written request; and

    (d)the father forward a copy of the results of such tests to the Independent Children’s  Lawyer as soon as they become available.

11. Pursuant to s11F of the Family Law Act 1975 the parties attend an appointment with a family consultant of the family law courts on 4 October 2017 at 9.30am with the parties to telephone the Registry on 1300 352 000 to confirm their attendance and with the mother at liberty to attend by telephone link.

12. Following thereon the family consultant provide a brief Advice to Court as to issues on which the parties agree, issues that remain in dispute and any recommendations as to interim or procedural orders.

13. Further consideration of the proceedings is adjourned to 11 October 2017 at 10.00am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3075 of 2016

MS JACOBSEN

Applicant

And

MR MOHR

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally following an interim argument.  They have been edited from transcript to correct any errors and generally to make my oral reasons easier to read.

1. These proceedings relate to the interim living arrangements for the parties’ very young child, X, who is just over twelve months old.  I have considered the Affidavits filed by each party, together with an Affidavit filed by the Independent Children’s Lawyer, annexing various documents from SA Police and the Department for Child Protection.

2. By way of brief background, the parties were in a brief relationship, from early to mid-2015 until June 2016.  X was born on (omitted) 2016 and was only three months of age when his parents separated. The parties agree that X has remained in the mother’s primary care since their separation and has not spent any meaningful time with his father for nine months. 

3. The parties agree that their relationship was dysfunctional and that there was a great deal of conflict between them.  They both accuse the other party of physical, emotional and verbal abuse during their relationship but not surprisingly, they each deny the allegations made against them.  No matter which party’s evidence may be closer to the truth, it was clearly a relationship marred by high conflict and X was exposed to this conflict.

4. Significantly, the mother made contemporaneous reports of the father’s alleged violence, both to her doctor and to her counsellor in May 2016.  She obtained an Intervention Order in June 2016.  Soon thereafter she also made reports to Families SA, or the Department of Child Protection, as they are now called.  Insofar as there is any supporting evidence in relation to the father’s allegations against the mother, I note that the paternal grandmother’s Affidavit does not confirm his evidence.  The father says that the paternal grandmother asked the mother to leave because of the mother’s verbal abuse[1], but that is not confirmed by the paternal grandmother.

   [1] Father’s Affidavit filed 11 October 2016, para 4.2

5. It is also significant that the father denied any suicide attempt in his initiating Affidavit[2], but eventually conceded he had attempted self-harm during his interview with Dr E, who prepared a psychiatric evaluation of the father.  Dr E’s report is dated 16 February 2017.   

   [2] Ibid, at para 9

6. Both parties are seeking interim orders for primary care of X although the father confirms he is not seeking that order today; he simply wants to commence spending time with X.  The Court’s decision-making responsibilities have been further complicated, as the mother moved to live in Melbourne in either December 2016, or January this year.  She is now living and working in Melbourne.  She has no immediate family support there but has her godparents or extended family living in Melbourne.  So I gather she has some social support in Melbourne, but it appears limited.

7. The question as to whether X should live in Melbourne or Adelaide cannot be considered separately to an overall assessment of X’s best interests.  That is to say, the Court should determine X’s best interests, taking into account the range of options before me, which include X living in Melbourne or living in Adelaide.

8. The Court was assisted by the written submissions presented by Counsel for the mother. The legislative pathway that the Court must follow in interim parenting disputes has been clearly identified by the Full Court. My responsibility is to make parenting orders that are in X’s best interests, guided by the considerations set out in s.60CC, to the extent possible at an interim hearing.

9. The Court must consider whether the presumption in favour of equal shared parental responsibility applies, but given the factual issues in dispute and the level of conflict between the parties I am satisfied the presumption does not apply at this interim stage.  I do not consider there is a sound basis to make any order in relation to parental responsibility on an interim basis. 

10. The parties understand that the Court cannot make findings at an interim hearing such as this. Equally, as counsel for the mother pointed out, the Court must take allegations of family violence very seriously. Section 60CC(2) identifies the two primary considerations: prioritising the child’s right to a meaningful relationship with both parents, and prioritising the child’s right to a safe and secure environment. Where those considerations are in conflict, the Court must place greater emphasis on the need to protect X from the risk of harm.

11. Clearly, when addressing the considerations in s.60CC(3), the allegations of violence require particular attention in this matter. I appreciate there are competing allegations of violence from both parties, but the mother has been able to provide some supportive evidence, in terms of photographs of bruising or injuries both to her and to X.

12. The father denies that he is responsible for those injuries, and says they must have arisen some other way.  The parties’ evidence is unable to be tested at this point in time, but the mother’s contemporaneous reporting does carry some weight with the Court, in terms of assessing the risk of family violence.

13. The mother alleges that the father has been subject to an earlier Intervention Order taken out by a previous female partner and provided documentation from SA Police in that regard.  The father acknowledged this, but says that he and his previous partner remain friends and have a perfectly amicable relationship.  That may be so, but it is concerning that two female partners have felt the need to seek police assistance in relation to the father.

14. I conclude there are real concerns that X may be exposed to violent behaviour between his parents on the evidence as it stands before me, albeit that evidence is untested.

15. It is well understood that the issue of family violence is a significant consideration affecting the best interests of a child.  The mother’s allegations are detailed and concerning.  She alleges that X was injured in the course of the father physically assaulting her.  She alleges the father was verbally abusive, although I consider it likely both parties may have been verbally abusive towards each other as their relationship deteriorated.  The mother alleges that the father engaged in controlling behaviour, such as deliberately throwing out X’s expressed breast milk so that the mother could not go to work or to some other specific appointment.

16. The mother alleges emotional abuse, including threats, or implied threats of harm from the father.   As discussed with the father during the hearing, if he sends a text message referring to him being arrested, or ending up in gaol, he should not be surprised that the mother might interpret such messages as a threat of harm towards her or towards X.  Clearly the volatile nature of the communication between the parties has created some of the difficulties now confronting the father, in terms of re-establishing his role in X’s life.

17. While I cannot make formal findings at this stage of the proceedings, I conclude that X must be protected from the possibility of family violence between his parents.

18. Turning to the remaining s.60CC(3) factors, I will discuss these briefly. Obviously, X is not old enough to be expressing any views. There is no independent evidence about X’s relationship with either parent at this stage. There is no real evidence to suggest that the mother is failing in her parenting responsibilities, as the father has no knowledge of X’s present circumstances.

19. I cannot make findings regarding the parties’ attitudes to their parental responsibilities or the extent to which they have each been involved in parental decision-making.  Clearly the mother has been making all decisions regarding X’s care and welfare; the father has had no opportunity to be involved, given the total breakdown in the parenting relationship.   

20. There is no doubt that the mother’s move to Melbourne is a significant change for X, and has made the possibility of X being able to spend significant time with his father much more complicated.  The Independent Children’s Lawyer has pointed out that the mother’s unilateral decision is a significant factor at this early stage of proceedings and this is confirmed by the relevant authorities.

21. In addition to the authorities cited by Ms Lewis, I rely upon the decision of Boland J, in Morgan & Miles[3] where Her Honour concludes that the Court should be cautious in permitting an interim relocation, as a Judge is unable to fully assess the evidence that will enable the Court to finally determine the child’s best interests. 

    [3]Morgan & Miles (2007) FLC 93-343

22. An interim relocation may also impact the Court’s capacity to consider the best or most appropriate parenting arrangements, particularly for a very young child.  Having said that, there are certainly circumstances where a child’s best interests may lead a Court to conclude that an interim relocation is appropriate.  The authorities are very clear in that regard and as always, each parenting case must be determined on the individual facts.

23. I am satisfied X should remain living in his mother’s primary care on an interim basis, but must consider whether X’s best interests will be promoted by living with his mother in Melbourne, or by returning to live in Adelaide.  The Independent Children’s Lawyer supports X returning to Adelaide, notwithstanding the mother’s allegations of violence.   I agree that it will be much more difficult to assess the risks or benefits of X resuming a relationship with the father, if they are living in different states.  This is particularly so, given X’s young age.

24. The Independent Children’s Lawyer has considered the various records from SA Police and the Department of Child Protection, in addition to the records presented from the mother.  The Independent Children’s Lawyer considers that the Intervention Order should ensure the mother’s safety.  

25. I agree that X and the mother’s safety can be addressed, even if they return to live in Adelaide.  The mother has the protection of an Intervention Order and could have the protection of further orders in this Court, if needed.  I do not consider that X would be at any greater risk of exposure to family violence if he was living with the mother in Adelaide. 

26. That is a highly relevant factor in my considerations today.    

27. The mother says she has secured employment in Melbourne, and wants to retain that opportunity.  She has presented a report from her psychologist and it is implicit within that report that the mother’s emotional welfare and her parenting capacity may be enhanced if she is able to remain in Melbourne, where she feels safer and more secure. 

28. The father has presented the psychiatric report from Dr E.  Obviously Dr E’s assessment of the father is based on his interview with him, but he also considered the parties’ Affidavit material. Dr E acknowledged that if the mother’s evidence was accepted by the Court, that would raise concerns about the father’s psychological stability and his capacity to play a meaningful parenting role in X’s life.  However, based on his assessment of the father, Dr E described the father’s presentation across 2016 as indicative of a reactive depressive mood adjustment to the difficulties within the parties’ relationship. Dr E’s report does not raise any concerns regarding the father’s present mental health.      

29. The Court is faced with the dilemma of weighing up X’s right to a safe environment free from the risk of potential family violence, as opposed to the potential benefit for X in having a meaningful relationship with both of his parents, going forward.

30. The mother’s allegations must be taken seriously, likewise her future prospects in Melbourne must be taken seriously.  Nonetheless, while living in Melbourne may reduce the risk of X’s exposure to family violence, it will also dramatically reduce any potential for him to develop a meaningful relationship with his father. 

31. The mother offers to return to Adelaide on a regular basis if required, and says she will be able to afford to do so, but I do not have any detailed information about her capacity in that regard.  Frankly, there must be some concern about her commitment to this travel, given her opposition to the father playing any role in X’s life. 

32. In any event, the mother proposes that if X is to spend time with the father, such time should be supervised through a Children’s Contact Centre.  I consider it would be very demanding for X to be flying or driving between Adelaide and Melbourne on a regular basis, to facilitate short supervised visits.  This is precisely why judicial officers should exercise real caution in relation to interim relocation issues. 

33. This is a difficult matter.  On balance however, I conclude that it is in X’s best interests that he return to live in Adelaide with his mother until these proceedings are finalised.  The mother lived in Adelaide until December 2016 and has family here.  The mother has the protection of the Intervention Order.  She will not need to disclose her address to the father and will not be required to interact directly with the father at any time.  I do not consider an order requiring X to return to live in Adelaide places the mother or X at risk, whereas it will certainly improve the Court’s ability to determine X’s longer term best interests, including any potential relationship with his father.

34. The Court must consider whether X should commence spending time with his father.  The father seeks to resume his relationship with X immediately.  He does not consider supervision is necessary, but says his mother can assist, if need be.  Counsel for the mother argued that X should not spend time with the father until the Court has conducted a hearing and made formal findings in relation to the allegations of family violence.  That is one option, but I also take into account we are dealing with a very young child.  Supervised time at a Children’s Contact Centre will ensure X’s physical and emotional safety while further evidence is gathered.  It will also enable some investigation of the child/parent relationship and the father’s parenting skills. 

35. The Children’s Contact Centre will also ensure that there is no direct contact between parents which is essential, given the serious allegations in this matter.   X’s return to Adelaide will also ensure that any other investigations can be undertaken easily, such as a family assessment, if required.

36. I appreciate the Court’s decision has significant implications for the mother, in terms of her employment and accommodation in Melbourne.  I have considered these implications, but conclude that X’s best interests still prevail.   I appreciate the mother will need time to arrange her return to Adelaide, however.  It is not a situation where she can be expected to return immediately.  She will need to notify her employer, arrange her finances and organise accommodation in Adelaide.  I am confident the mother will be able to make the necessary arrangements, provided she is given sufficient time.  I consider a time frame of three months should be allowed.

1. The father needs to reflect upon these Reasons and the concerns I have raised.  He would do well to consider counselling.  I consider his communication with the mother has been threatening at times and he may benefit from investigating some form of anger management or “behaviour change” counselling.  There are courses designed to assist parties to develop more effective and appropriate communication with the other parent.  I make these comments for the father to consider whether he may be able to improve his capacity to play a meaningful parenting role in X’s life, going forward.

2. For the reasons that I have given, I now make orders as published at the commencement of these reasons.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Kelly

Date:  3 April 2017