Jamal and Maalouf
[2008] FMCAfam 1406
•23 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JAMAL & MAALOUF | [2008] FMCAfam 1406 |
| FAMILY LAW – Interim arrangements for care of children aged 8, 6 and eighteen months – parties of Lebanese background – mother alleges father violent and domineering personality – father alleges mother has secretly relocated children from Adelaide to Melbourne without his consent – mother alleges that she had no alternative but to flee abusive relationship in order to protect best interests of children – presumption of equal shared parental responsibility – principles to be applied to application for interim relocation – meaningful relationship with both parents – protection of children from family violence – best interests. |
| Family Law Act 1975, ss.60B, 60CC, 61DA, 65D, 65DA, 65DAA |
| Bergman & Waite [2008] FMCAfam 1242 Goode & Goode (2006) FLC 92-286 In the marriage of Patsalou (1994) 18 Fam LR 426 JG & BG 18 Fam LR 255 AMS v AIF (1999) FLC 92‑852 Campbell & Spalding (unreported) Lindenmayer, Warnick and Ellis JJ delivered on 15 May 1998 U v U (2002) FLC93-112 Morgan v Miles [2007] FamCA 1230 |
| Applicant: | MR JAMAL |
| Respondent: | MS MAALOUF |
| File Number: | ADC 4810 of 2008 |
| Judgment of: | Brown FM |
| Hearing dates: | 16 & 22 December 2008 |
| Date of Last Submission: | 22 December 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 23 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bowler |
| Solicitors for the Applicant: | Legal Services Commission of SA |
| Counsel for the Respondent: | Ms Goldberg |
| Solicitors for the Respondent: | Ebejer & Associates |
ORDERS
The mother return the children [X] born in 2000; [Y] born in 2002; and [Z] born in 2007 hereinafter referred to as (“the children”) to the metropolitan area of Adelaide at her own expense, by 4:00pm on 4 January 2009.
UNTIL FURTHER OR OTHER ORDER
In the event the mother elects to return to live in the Adelaide metropolitan area, pending the final hearing of this matter, the children live with the mother and spend time with the father as follows:
(a)On alternate weekends commencing 10 January 2009 from 9:00am Saturday until 6:00pm the following Sunday;
(b)In the other week commencing 14 January 2009 from 4:00pm on Wednesday until 4:00pm the following Thursday;
(c)On each of the children’s birthday for a period of three hours to be agreed between the parties and failing agreement to be from 3:00pm to 6:00pm on each of the children’s birthdays; and
(d)At any other times and on any other occasions as agreed between the parties.
The children are to be exchanged between the parties, pursuant to order 2 hereof at a location to be agreed between the parties and failing agreement to be in the foyer of the 24hour police station nearest to the father’s place of residence.
In the event the mother elects not to return to live in Adelaide permanently, pending the final hearing of this matter, the children live with the father and spend time with the mother at times to be agreed between the parties or as otherwise directed by the court but, in any event, the children spend one half of each school holiday period until the final determination of this matter with the mother in Melbourne with the costs of the children’s travel between Adelaide and Melbourne to be shared in equal proportions by the parties herein.
In the event the mother fails to comply with order 1 hereof a recovery order issue in the normal form authorising the Marshall of the court and officers of the Australian Federal Police to locate the children and deliver them to the father.
In the event the mother elects to return to live in Adelaide pursuant to order 2 hereof, the father advance her the sum of $2,000.00 by 21 January 2009 to enable her to pay a security deposit and pay rent on suitable accommodation for herself and the children in the Adelaide metropolitan area pending final hearing of the parties’ competing applications herein.
That the parties be restrained and injunctions are hereby granted restraining them from removing or causing or allowing the children [X] born in 2000; [Y] born in 2002; and [Z] born in 2007 to be removed from the Commonwealth of Australia.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said children [X] born in 2000; [Y] born in 2002; and [Z] born in 2007 from the Commonwealth of Australia.
The Australian Federal Police place the name of the said children [X] born in 2000; [Y] born in 2002; and [Z] born in 2007 on the airport watch list enforced at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the watch list Until Further Order of this Honourable Court.
Pursuant to section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children [X] born in 2000; [Y] born in 2002; and [Z] born in 2007 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
The matter is fixed for final hearing before Federal Magistrate Brown on 4, 5 & 6 August 2009 at 10:00am NOTING 3 days allowed.
Further consideration of this matter is adjourned to 11 February 2009 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Jamal & Maalouf is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 4810 of 2008
| MR JAMAL |
Applicant
And
| MS MAALOUF |
Respondent
REASONS FOR JUDGMENT
Introduction
This case raises complex issues of a type which the Federal Magistrates Court, a busy first instance court, is frequently asked to resolve at an interim stage, invariably against a background of extreme emotion; where time for hearing is limited; where documents have been hastily prepared and one party appears, from a distance, by telephone.
The reason for the urgency is reasonably common place. One party, invariably a mother, says that her previous domestic circumstances were so fraught with violence and abuse that she had no viable alternative but to relocate, often secretly, both herself and any children concerned, away from her abusive spouse and seek the safety offered by other family members, who live many hundreds of kilometres away, often interstate.
The other party vehemently denies that he is the violent spouse portrayed. In support of this position, the father concerned often points to the lack of compelling and independent evidence corroborating the mother’s claims against him, particularly that there are no documents available to the court, such as domestic violence orders; police reports; or medical reports detailing injuries received. Rather the complaints made against him are general and non-specific.
For her part, the mother concerned relies on her own accounts of violence and domestic misbehaviour, which are only supported by her own accounts to family members. However, in support of her application to remain in the location to which she has fled, the mother concerned points to the damage that will be done to any child if returned to the care of such an allegedly abusive spouse. As such, the mother concerned says that protective concerns for any child involved must be paramount.
In these circumstances, the mother concerned will contend that it is a well known phenomenon that abused woman, particularly woman who have immigrated to Australia, can be disempowered by years of abuse from their partners and so be unable to report the violence involved to relevant authorities, for all sorts of reasons, and so do not know how to seek help to escape from such abusive relationships. Rather, when the “crunch” comes, they escape where they can and seek safety, where it is most available to them.
On the other hand, the father concerned submits that, if the court permits the children to remain where they are, it will necessarily mean that these children will be potentially robbed of having an intimate and meaningful relationship with their father. In addition, it is often said that the court should not condone such unilateral relocations of children, unless compelling circumstances can be made out on the evidence available. If evidence, of this high level, is not available, the court should take steps to have the children returned to the location from which they have been removed.
All these features are present in this case, which raises the following general issues:
·How does the court respond to allegations of family violence, in the context of relocation at the interim stage, where it is unable to resolve these allegations and there is no or little independent verification of such violence.
·How does the court deal with cases involving inchoate allegations of family violence, arising over many years, which are vehemently denied, also in generic terms, by the spouse said to have committed them.
·How does the court deal with an application for relocation, at the interim stage, after the relocation has in fact occurred, against such a background.
·What are the implications of such relocations, where young children are involved, whose relationships with their parents are necessarily not fully formed and may be highly susceptible to the stresses created by distance.
·How does the court deal with a mother who says she will not return to where she previously lived, regardless of what orders are made, because of concerns, raised by her, relating to her safety.
·How does the court deal with parties, in such situations, who are in straitened financial circumstances. The relocating parent saying she has no resources to return easily and the father, left behind, likely to find it difficult to move or visit the new location regularly.
·Centrally, how does the court balance the two most important legislative considerations relating to the best interests of the children, at the interim stage, namely the need to protect them from being exposed to family violence and the benefits of them having a meaningful relationship with not one but both of their parents.
All these features are present in the current case, which falls to the court to determine at an interim stage. The mother concerned has moved to Melbourne with three young children. She says she had no alternative but to flee an abusive and violent relationship so her children could be safe.
The father concerned remains behind in Adelaide. He wants to spend time with his children and wants them returned to Adelaide where they have lived all their lives until a few weeks ago. He has wasted no time bringing these proceedings.
Background
Mr Jamal “the father” and Ms Maalouf “the mother” are the parents of [X] born in 2000; [Y] born in 2002; and [Z] born in 2007.
The parties are both of Lebanese background. There is a significant difference in their ages, the mother being twenty years younger than the father. The father is currently in receipt of a disability pension. He has lived in Australia for a longer period than the mother. The parties met in Lebanon in the late 1990’s. They married in October of 1999.
The father arranged for the mother’s visa to come to Australia. Initially, they settled in Sydney but have lived in Adelaide for many years. As I understand things, all three of the children were born in Adelaide. Until recently, [X] and [Y] were attending the [N] Primary School.
The father commenced these proceedings on 4 December 2008. At the interim stage, he sought a Commonwealth Information Order; a recovery order in respect of the three children concerned; an order restraining the children from being removed from Australia; the placement of the children’s names on the airport watch list; and orders that would see the children living predominantly with him in Adelaide.
At his request, the father’s application was listed urgently. The first return date was 16 December 2008. It is unclear to me when the mother was precisely served with the father’s application. The mother responded to this application on 15 December 2008. On an interim basis, she seeks orders that the children live with her in Melbourne and spend time with their father, as this court deems appropriate. She also fears the children may leave Australia and wants similar orders, in this regard, to the father.
It is common ground between the parties that they finally separated in the first week of November of 2008. It is the father’s position that he consented to the children going to Melbourne, with their mother, for a short holiday. He is now concerned that the mother has elected to remain permanently, with the children, in Melbourne. Initially, he was fearful that the mother might secret the children out of Australia to Lebanon.
In his original affidavit, filed on 4 December 2008, the father acknowledges that the parties have had an unhappy relationship for some time and have been arguing together but it is his case that “there have been no acts or incidence of domestic or other violence in our marriage”.[1]
[1] See father’s affidavit at paragraph 35
It is the father’s case that the three children concerned are well settled in Adelaide. He deposes that it has been difficult for him to communicate with the older children by telephone since the mother took them to Melbourne, without his permission. He further says that he went to Melbourne, in mid-November, in an attempt to see the children.
As a result, the father says he met the mother at a café and indicated clearly that he was not in agreement with the children staying in Melbourne. On this occasion, he says the mother’s brother made a threatening gesture towards him.
It is the father’s position that he has been previously involved in the daily care of the children and is a real part of their lives. In support of this contention, he points to the fact that he walks the two older children to school each day.
The father disputes the mother’s suggestion that her only sources of emotional and family support are in Melbourne. It is his case that the mother has friends and an aunt in Adelaide, to whom she is close. He wishes to be part of the children’s “every day lives”, which will not be possible if they remain living in Melbourne.
It is also the father’s case that, if the children remain in Melbourne, the mother lacks the financial resources and will to ensure that they spend regular time with him in the future. As such he fears for the future quality of his relationship with the children concerned.
It is the father’s case that he has a close and loving relationship with all three children, which was most recently demonstrated when he saw them recently, in Melbourne, and they hugged and kissed him and indicated how much they missed him.
It is the mother’s case that the father is a violent, domineering and abusive person and has been such, to her, throughout the vast majority of the parties’ marriage together. It is her case that she fears the father, particularly if she has to return to live in Adelaide.
In her affidavit, filed 15 December 2008, the mother describes the father’s behaviour as follows:
“… throughout my marriage my husband would argue with me and become aggressive which sometimes resulted in physical violence”[2]
“… my children witnessed these incidents and often my child, [Y] would cover her ears and say ‘don’t fight’.”[3]
“I only ever told my family of the violence I endured … there were many occasions when my husband just refused to speak with me, sometimes this lasted for four days.”[4]
“As a new migrant with little English or family support I have never reported the numerous incidence of violence against me. Further I say that my husband warned me on many occasions that if I told anyone that he would get someone in Lebanon to hurt my family.”[5]
[2] Mother’s affidavit filed 15 December 2008 at paragraph 42
[3] ibid at paragraph 43
[4] ibid at paragraph 40-41
[5] ibid at paragraph 39
It is the mother’s position that she has always been the children’s primary carer and has attended to all their needs. She denies that the father has been extensively involved for caring for the children and, to the contrary, asserts that he has been essentially disinterested in them.
It is the mother’s position that the father has restricted her access to the family’s finances, during the marriage and is highly controlling, so far as financial matters are concerned. It is also the mother’s case that the father was having a clandestine affair during the parties’ marriage.
The mother denies that she secretly went, with the children, to Melbourne. To the contrary, it is her case that she informed the father, in the presence of her brother Mr M that she could no longer tolerate the father’s behaviour, at which point the father allegedly said to her that he wanted nothing from her not “her, not the kids, not the money … I don’t want the car or her gold.”
In her initial affidavit, the mother indicated that she was apprehensive at the prospect of the children spending any time with their father because he might harm them or her. It is also her case that, due to a back injury, the father is incapable of providing proper care for them.
As previously indicated, the father’s initial application was listed for 16 December 2008. The mother, through her solicitor, requested to attend the hearing by telephone. This application was granted. In the facsimile requesting leave to appear by telephone, the mother’ solicitor wrote as follows:
“Our client will also require the assistance of an Arabic interpreter.”
The facsimile did not indicate where such an interpreter was required. It seems to be the case that Registry workers, at the court in Adelaide, in the absence of any more specific direction, arranged for the interpreter requested to attend the court in Adelaide.
The mother was represented, at the hearing of 16 December 2008, by her counsel Ms Goldberg. I indicated to her that I was concerned that the mother’s claims of having suffered domestic violence, at the father’s hand, were not put with any great degree of precision or clarity. Accordingly, the proceedings were adjourned so that the mother might file some further affidavit material.
It was also the case that, perhaps in anticipation of being accused of being a violent person, the father had only denied any inappropriate behaviour, on his part, in a general sense in his first affidavit. Obviously he was not in a position to formally respond to the mother’s allegations against him.
The case also raised many practical considerations. At the time, I was concerned that the mother had not turned her mind to what she would do if the court was not prepared to allow the children to remain living with her in Melbourne.
Clearly, it was the case that the mother had no obvious place to live, with the children, in Adelaide. In these circumstances, I wanted the father to consider what assistance he could give the mother to return to Adelaide and how the mother herself would cope with what I acknowledge was an unpalatable outcome for her.
Accordingly, the proceedings were adjourned to 22 December 2008 and each party was given to leave further affidavit material.
On 16 December 2008, Ms Goldberg did not raise specifically with me the issue of an Arabic interpreter for her client. An interpreter, in this language, was present at court in Adelaide and apparently assisted the father.
The second hearing and the parties’ further material
By 22 December 2008, the mother had filed further affidavit material in support of her position. This included a further affidavit of herself filed 18 December 2008; an affidavit of her brother Mr M also filed
18 December 2008; and an affidavit of Ms E filed 19 December 2008.
The father had filed one further affidavit, on his own behalf. This was an affidavit of himself filed 19 December 2008.
The hearing reconvened on 22 December 2008. Once again, the mother and her counsel appeared from the mother’s solicitors’ office in Melbourne. Ms Goldberg raised the issue of the Arabic interpreter. She sought that the proceedings be adjourned so her client could have such an interpreter. I pointed out that no request had been made for this on 16 December and no specifics provided as to where the interpreter should go. The application was opposed.
In all the circumstances, particularly that the matter had not been raised on the earlier occasion and the request for an interpreter was made in somewhat amorphous terms, I determined to proceed with the hearing. It was the position of the father that a determination needed to be made sooner rather than later.
In her second affidavit, the mother gave more details of her relationship with the father. The two had apparently married in Lebanon after having known each other for about a fortnight. At the time of the marriage, she was nineteen and the father was thirty-nine years of age.
She reiterated her complain that the father had had a mistress during the entirety of the parties’ marriage and he had been frequently verbally abusive to her. It was her case that from her “first day in Australia” the father had yelled at her and pushed her for “no reason at all”. She also complained that he had smashed crockery and abused her in the presence of the children calling her a “dumb slut” and other profanities.
It was her case that the father’s behaviour disempowered her, particularly in the sense that she was prevented from speaking with her relatives and friends. She reiterated her position that she was scared of the father and if she moved back to Adelaide, she feared she would be harmed or punished by him, as she had no relatives who would be prepared to “look out for [her]”.
The mother concluded her second affidavit with the following paragraph.
“That if I am permitted to continue to live in Melbourne with my children I will ensure that the children spend school holidays with the applicant. That I will bear the costs of all travel to and from Adelaide for them. That I will encourage the children to telephone the applicant on a regular basis and provide a phone number for the applicant to telephone the children.”[6]
[6] See mother’s affidavit at paragraph 38
The father’s counsel, Mr Bowler is again critical that the mother has failed to set out any specific incidents of the violence, about which she complains. Rather, Mr Bowler categorises the complaints as lacking in detail and being general in nature.
It is also Mr Bowler’s position that there is an inherent contradiction in the mother’s initial position that she was scared to allow the children to spend any time, whatsoever, with their father but in her second affidavit, she is prepared to offer more extensive time, if she is able to remain living in Melbourne. In these circumstances, it is Mr Bowler’s submission that the court should entertain considerable doubts about all the mother’s affidavit material.
Mr M deposed that he had arrived in Australia about six months ago. He supported his sister’s claim of having reported to him significant complaints about suffering family violence, at her husband’s hands.
It was his case that, on 8 November 2008, he had been summonsed to Adelaide by his sister, for help. On this occasion, the mother complained of having been pushed by the father and having had her hair pulled.
Mr M deposed that he had arrived in Adelaide on 9 November 2008 and had attended with the mother at the former family home, where the mother had packed a number of bags, in the father’s presence, without any apparent demure from him before she left.
Mr M finished his affidavit with the following paragraph:
“That I am willing to support my sister and her children and believe that I am not most appropriate person to support them as I am her brother. I have known about the terrible conditions my sister and the children lived in and am very pleased that she has finally moved away from the applicant. He has destroyed my sister’s spirit by always putting her down and physically hurting her. She has no confidence and continues to be scared of the applicant and his continuous threats.”[7]
[7] See affidavit of Mr M filed 18 December 2008
Ms E deposed that she knew that the relationship between the parties had been unstable for many years. She did not provide any more specific details of why this was so other than the mother complained that she had been arguing with the father.
In his second affidavit, the father maintained his position that the mother and children had left the former family home, on 9 November, in secret. Once again, the father denied that he had ever abused the mother. He pointed to the fact on no occasion, during the parties nine year marriage, had the police ever attended at the parties’ home.
He also deposed that, during the period of the parties’ marriage, the mother had had an active social life and had many friends in Adelaide. It was also the case that the mother had other relatives in Adelaide, particularly in the form of her aunt and it was disingenuous for her to suggest that she was bereft of all social support in Adelaide.
It was also the father’s position that the mother had become well integrated into life in Australia and it was untrue that he had isolated her within the parties’ home. He reiterated that he was physically and emotionally distraught at not being able to see his three children and wanted to maintain a meaningful relationship with them.
In his second affidavit, the father indicated his willingness to assist the mother financially to secure housing for herself and the children in Adelaide. He deposed that he was willing to pay a sum equal to three months rent in advance and would provide some furniture to the mother.
The father also indicated that the mother had recently received a cash benefit, in a sum of around $3,000.00, from the Commonwealth Government and so could not be described as being totally bereft of funds.
During the course of the second hearing, Ms Goldberg indicated that, if her client was able to remain in Melbourne with the children, she was prepared to allow the children to spend alternate weekends with the father and half of each school holiday period, provide the father came to Melbourne for this purpose and the children were exchanged between the parties at a police station.
The parties’ completed their respective submissions to me at around about 10:35am (Adelaide time), after the case had commenced at around 9:50am. I was in the process of giving extempore reasons when the line to Melbourne became disconnected due to a power failure. Attempts to re-establish contact with the mother’s solicitors’ officer were unsuccessful.
In these circumstances, the proceedings were adjourned overnight and I elected to provide some written reasons to each of the parties concerned. I thought it important that each of the parties have a permanent record of the interim decision and this be available to the independent children’s lawyer whom I intended to appoint. Necessarily, given the time available to me and the fact that the reasons are to be delivered in the week prior to Christmas, they are somewhat hasty in their preparation.
Summary
As this summary of the evidence indicates, the respective positions of the parties are polarised in the extreme. These disputes can be summarised as follows:
·The nature of the relationship between the parties.
·The mother says she was disempowered and isolated throughout it and the father was perennially violent and abusive towards her, at times in the presence of the children.
·On the other hand, the father says these claims are a complete concoction and the mother is relatively well integrated into the community in Adelaide, where she has lived for an extended period of time.
·The mother says that the father permitted her to travel with the children to Melbourne.
·The father says the move occurred secretly and without his permission.
·It is common ground that there are no independent sources of evidence to support either the father or mother.
·The mother says this is not surprising given her background and the nature of the father’s abuse towards her, which occurred in private and behind closed doors.
·For his part, the father asserts that the absence of this evidence is telling and tends to suggest that his evidence is to be preferred.
·The mother asserts that she has been the children’s main provider of care and she is a capable and loving parent. She characterises the father as essentially disinterested in the children and often absent.
·The father says he is a loving parent who has been closely involved in the children’s lives. He refutes any suggestion that he is disinterested in them.
·The father asserts that the children are missing him, whilst they remain in Melbourne.
·The mother says the children are now happy and well settled in Melbourne.
Given the shortened nature of these proceedings, which do not allow for cross-examination at the interim stage, I am not in a position to resolve these very many and fundamental disputes between the parties.
The legal principles to be applied
Ms Goldberg referred me to a decision of my own delivered 19 November 2008 Bergman & Waite[8], in which I set out the relevant legal principles applicable. I reiterate those principles.
[8] Bergman & Waite [2008] FMCAfam 1242
The service of [X], [Y] and [Z]’s best interests is the most important consideration in this case [Family Law Act s.60CA]. The same principles apply at both the interim and the final stage. The distinction being that interim hearings do not determine long term arrangements for the care of a child, whereas final proceedings do.
It is frequently the case that the court is called upon to make interim determinations against a background of urgency in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child’s best interests.
The aims and principles of the part of the Family Law Act [section 60B] which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.
Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The court has a discretion not to apply the presumption at the interim stage, if circumstances exist which make it inappropriate for it to be applied [Section 61DA (3)]. The sub-section is likely to be pivotal, in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
However the court must not utilise this discretion in an arbitrary fashion. Rather it is to be applied, at the interim stage, in cases where the limited evidence available to the court necessarily makes it problematic to either apply or rebut the presumption [see Goode & Goode (2006) FLC 93-286 at 80,903].
The presumption is also rebutted if evidence is provided which satisfies the Court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
It should also be noted that, if the presumption is applied at the interim stage, it must be specifically disregarded, by the court, at the final stage, when a more exhaustive hearing is possible [section 61DB].
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
The Full Court has directed that it is necessary for the court to consider all of the section 60CC factors applicable and, if possible, make findings about them. [see Goode & Goode (supra) at 80,903].
Issues of practicality are dealt with by section 65DAA(5). The Court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the children concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[9]
[9] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
In Goode & Goode the Full Court directed that in determining interim hearings, after identifying the competing proposals of the parties; the issues in dispute; and any agreed issues; the court should:
·Consider the section 60CC matters relevant and, if possible make any relevant findings of fact;
·Decide whether the presumption in section 61DA should be applied or if it is rebutted because:
ØThere are reasonable grounds to believe child abuse or family violence has occurred;
ØOr, in interim proceedings only, it would not be appropriate to apply the presumption;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child’s best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent, unless it is contrary to the children’s best interests as result of the consideration of any relevant section 60CC matter or is impracticable in the terms of section 65DAA(5);
·If neither equal time or substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child, when considering applicable matters in section 60CC;
·If the presumption is rebutted or found not to apply then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
Allegations of family violence must be closely examined by the court, bearing in mind the serious consequences exposure to family violence may have for the child concerned. Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child’s parents are not appropriate psychological role models for children [see In the marriage of Patsalou (1994) 18 Fam LR 426].
Allegations of family violence are easy to make and difficult to refute. This is because family violence, more often than not, arises within the private confines of a family home and may evoke emotions such as embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised that family violence is prevalent in all social settings and walks of life.
However, family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown and is instantly regretted or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned [see JG & BG 18 Fam LR 255 at 261]. Obviously the latter behaviour is the more damaging, so far as children are concerned.
Again these are factors which the court must bear in mind in examining issues of family violence in the context of determining the best outcome for the child concerned. Not all incidents of family violence will be necessarily damaging to a child.
The fundamental task for the court is to assess prospective dangers for the child concerned, arising from the possibility of further exposure to family violence, rather than to punish a parent for past failings, particularly if that failing arose against a background of difficult circumstances or indeed as a result of provocation or incitement.
Finally, the definition of family violence in the Family Law Act has an objective level. The fear or apprehension occasioned by the behaviour complained of must be reasonable [section 4]. It is not unknown for parties in acrimonious proceedings, such as these, to exaggerate unfortunate incidents, which have previously occurred, either unintentionally or for tactical reasons.
This case throws up complex issues to do with relocation. It is the mother’s wish to live with the children in Melbourne. It is her case, that as the children’s primary provider of care, she should be entitled to live how and where she choses, with the children.
It is also her case that if she is happy and well settled, in the environment of her choosing, this is likely to have beneficial flow-on effects for the three children concerned. Above all, it is her case that the protective issues she has raised, about the father’s conduct towards her, should be given pre-eminence by the court, at this stage.
It is the mother’s submission that her claims of having suffered serious violence, at the father’s hand, cannot be regarded as being inherently unbelievable. Rather, given her circumstances, particularly her migrant background, these claims must be given a significant level of credence by the court. It is the mother’s case that her claims of violence are necessarily not the sort of claims that are readily amenable to conclusive proof, particularly at the interim stage.
Accordingly, it is the mother’s case that, as the children’s best interests remain paramount, it would be imprudent for the court to ignore the family violence issues, which she has raised, until such a stage as the court can more thoroughly investigate them. She contends that she has formulated these claims to the best of her ability, in what must be described as difficult circumstances for her.
The father has lived in Adelaide for many years and has no plans to live anywhere else. It is his position that the mother has acted unilaterally of him and imposed a situation where it is difficult for him and the children to retain a viable relationship with one another, particularly so far as [Z] is concerned, who is an infant.
Accordingly, the father asserts that the mother’s actions have deprived the children of the opportunity to benefit from having a meaningful relationship with him. As such, it is his case that the mother has shown a poor level of insight into the responsibilities of being a parent.
Australia is a free and democratic country. It is the right of any parent to live how and where he or she choses, separate from the other parent concerned, at the end of the relationship between them. There is no principle of law, which requires parents to live close to one another on an indefinite basis.
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both his or her parents regardless of the fact that the parents concerned choose not to live together. As a result of these matters, the High Court has determined that relocation cases require a particularly close and delicate analysis of the various issues involved [see AMS v AIF (1999) FLC 92‑852].
Accordingly, it is usually considered preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocation have potentially serious ramifications for children, particularly young children, in terms of their parental relationships. In addition, the determination of a relocation issue at the interim stage may make the need for a final hearing redundant.
As such, the Full Court of the Family Court has indicated that it is usually preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone. [see Campbell & Spalding (unreported) Lindenmayer, Warnick and Ellis JJ delivered on 15 May 1998].
At both the interim and final stage, of any relocation case, the best interests of the child concerned remain the paramount consideration. Depending upon the circumstances of the case concerned, it may be incumbent upon the court to investigate the possibility of one parent moving to be closer to the child concerned, rather than necessarily directing that a child be moved closer to that parent or be restrained from being moved in the first place.[10]
[10] See U v U (2002) FLC93-112
Campbell & Spaulding was decided prior to the Family Law Amendment (Shared Parental Responsibility) Act 2006. Prior to the amending Act there was a focus on maintaining stability in arrangements for a child pending a final hearing. Accordingly, at the interim stage, the court was directed to exercise considerable caution, in respect of relocation issues, particular unilateral relocations, which occurred independently of the other parent concerned.
In Morgan v Miles[11] Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“…it [is] highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in Campbell and Spalding remain apt and relevant to determination of these cases.”
[11] Morgan v Miles [2007] FamCA 1230 at p.25
Conclusions
It is now the stage where I attempt to marry up the legal principles to the factual situation in this case, as best I can make it out. Firstly, I must consider the relevant s.60CC factors, particularly the primary considerations.
For obvious reasons, the father and mother look to the court to place particular emphasis on one of the primary considerations above the other. The mother’s case is that the need to protect the children from family violence is more important. On the other hand, the father points to the benefit of the children having a meaningful relationship with him.
I am concerned about the significant issues of family violence, which the mother has raised. However, the fact remains that her allegations are uncorroborated, apart from members of her family. In this regard, I note that Mr M has only been in Australia for around six months.
I am not in a position to deny the truth or otherwise of the mother’s claims of having suffered family violence. Rather, my responsibility is to make orders which I think are commensurate with the degree of risk raised by the mother within the matrix of the other legislative considerations provided by s.60CC.
I can understand why it is the mother’s preference to live in Melbourne. I accept that she has a close relationship with her brother. However, to my mind, the mother’s decision to move to Melbourne, with the children concerned, was not commensurate with the degree of risk constituted by the father’s alleged behaviour towards her.
Regrettably, allegations of family violence are perennial in many matters which come before the court. State based magistrates’ courts, on the application of the police, are empowered to make a variety of family violence orders, where allegations of family violence are made.
In this case, the mother has not made any such application to the court or made any specific complaint to the police about the father’s prior behaviour. Nor has she sought any assistance from any Adelaide based agency to assist her in this matter. Rather she has moved to Melbourne, admittedly in circumstances which are greatly disputed by the parties themselves.
I am not able to determine what was said or indeed if anything was said at all between the parties when the mother finally quit the parties’ former family home. The circumstances between the parties in late October and early November of 2008 were obviously very unhappy and unstable. As such it is unlikely that the parties were capable of making any concrete or long term agreement in respect of future arrangements for the care of the three children concerned.
At this stage, I am not in a position to make an accurate assessment as to whether or not the mother was so disempowered, by the father’s behaviour, that she was not able to access the remedies available to her to afford her some level of protection or assistance in Adelaide or indeed assess whether, because of her background, she was aware that such remedies existed to her.
In addition, I must not loose sight of the fact that the father vehemently disputes that he has been a violent spouse. Even if the father has been violent towards the mother, it is difficult to put the father’s level of behaviour on some sort of scale of seriousness. These are interim proceedings, their outcome is not intended to be the final determination of the parties’ competing claims and respective cases.
At this juncture, given the ages of the children, particularly [Z], it is difficult to see how these children may have a meaningful relationship with their father, if they remain in Melbourne and he remains in Adelaide. Contact arrangements will be fraught with difficulty.
[Z] is around 18 months of age. She is not able to converse, with her father, on the telephone. It is likely that she will forget her father, between any period of holiday contact, and, as such, may lose the benefit of having a meaningful relationship with him. [X] and [Y] are older children but cannot be described as fully mature. The same considerations apply to them but to a lesser degree.
The parties are in fundamental dispute about the level of relationship each has with the children. The father says that he has been extensively involved in caring for the children. The mother disputes that this is the case. Again, this is a common area of controversy in cases such as this one.
As a result, it is a common phenomenon that the court orders some form of independent assessment of the nature of the relationship between each of the parents concerned and the relevant children. Given the urgency of this matter, such a report is obviously not able to be prepared prior to the date scheduled for this interim determination.
In my view, the absence of such a report, is a factor which militates in favour of the children returning to Adelaide in the short to medium term. I am bound by the decision of Warnick J in Campbell & Spaulding and am concerned at the prospect of such a family assessment having to be completed against a background of “recent development”, which significantly alters the nature of the relationship one of the children’s parents has to the children concerned.
At this juncture, I am not persuaded that the circumstances outlined by the mother, which are vehemently refuted by the father, create such a situation of emergency to justify the three young children concerned being moved to live in another state far away from their father and the ability to interact meaningfully with him at a sufficient level to be beneficial to them, particularly given their respective ages and level of cognitive maturity.
In my view, the mother had other potential options available to her, to ensure her and the children’s protection, short of moving with the children to Melbourne. I am concerned, given the volatile circumstances which existed, that the mother was naïve, at best, to think she had the father’s imprimatur to move the children there.
This case raises many practical considerations. Neither party seems to be in a strong financial position. In such circumstances, I do not believe that it is viable for the children to maintain a relationship with their father, through periods of alternate weekend contact and during school holidays, if the children remain in Melbourne and the father remains in Adelaide. To put it bluntly, I do not think the parties have the financial resources to make this a workable outcome.
The father has some proposals to assist the mother to return to Adelaide. It is open to the mother to obtain the protection of a Family Violence Order, upon her return to Adelaide. The parties will no longer be in the same household. As such, it seems to me that the prospects of the father being violence towards the mother again are much reduced.
This case raises complex issues of relocation. I am mindful that every relocation case requires “delicate analysis” and each such case is different from those which have followed before. As such, it seems to me that relocation is fundamentally an issue for final hearing. I must be careful to avoid pre-empting the need to have such a final hearing, particularly on the basis of untested assertions of fact.
Bergman & Waite involved a case where the parties concerned had lived in Darwin for a few months. One parent had unilaterally moved to Brisbane with the child concerned. Both made serious allegations of antisocial behaviour against the other. However, neither party nor the child could be considered well settled in Darwin. In those circumstances, I elected to allow the child concerned to remain living in Brisbane.
This case is different. The parties concerned and the children involved have lived in Adelaide for very many years. Accordingly, it cannot be said that the children concerned do not have a sense of connection to Adelaide. To the contrary, until recently, [X] and [Y] have been attending primary school in Adelaide. In addition, the children have relatives in the city of Adelaide.
I am not in a position to examine any views expressed by any of the children. However, given the ages of the children concerned, even if it was said that the children had expressed a strong view, one way or the other, this is not likely to be a determinative factor at this stage of proceedings [s.60CC(3)(a)].
The parties have lived together, in the same household, since the date of each child’s respective birth. In these circumstances, it seems more likely than not that the children each have a significant relationship with both their mother and their father. Certainly, it cannot be said that the children do not know their father and have no level of relationship with him [s.60CC(3)(b)].
There is a tension between the mother’s actions in moving the children to Melbourne with her current indication that she is willing to permit the children to see their father regularly, for extended periods of time, including overnight and holiday time. In all the circumstances, I have some reservations about the mother’s capacity to encourage a close and loving relationship between the father and the children concerned [s.60CC(3)(c)].
The mother’s actions have taken the children to a new city and the two older children have been enrolled in a different school. Given what has transpired since early November, I do not think that this move has been handled well. Certainly, I think it naïve of the mother to think that her relocation of the children to Melbourne occurred consensually.
Certainly, at this juncture, the mother’s actions have deprived the children of an opportunity to interact with the father and members of his family on a day-to-day basis. In my view, this is a significant change of circumstances for each of the children concerned [s.60CC(3)(d)].
This is a case concerned with complex issues of culture and background. I am not in a position to resolve these issues, at the interim stage. Once again, I think this is a good reason why the children should return to live in a city with which they are familiar.
Both parties say that the other is a poor parent, though for different reasons. I am not able to resolve these issues at the interim stage.
This is a complicated case. I am not in a position to resolve the complicated issues of violence, which the mother has raised. These issues are vehemently refuted by the father. I still have to consider how children are to be best protected from the corrosive consequences of being exposed to family violence.
In my view this can be done if the parties do not come into extensive contact with one another and live in separate households. It is open to the mother to seek a family violence order.
However, given the issues of family violence raised in this case and the polarised positions of the parties, I do not think it would be appropriate to apply the presumption of equal shared parental responsibility [section 61DA(3)].
In all the circumstances, I believe that the children’s best interest will be served if they return to live in Adelaide, pending the final hearing of this matter. The mother has indicated that she will not return to Adelaide, if this be the outcome. In my view, the mother is able to return to Adelaide, in the short term, notwithstanding her indications to the contrary.
If the court accedes to the mother’s request, at this stage, it is likely to render the need for a final hearing otiose. In addition, the court will give its imprimatur to the precipitate interstate relocations of the children concerned and possibly others. This cannot be a good thing, so far as the best interests of the children are concerned.
It is not beyond the bounds of possibility that, notwithstanding the inherent difficulty in the case, the court’s ultimate decision will be that the best interests of these children will be served by them living with their mother in Melbourne. However that remains uncertain at this stage. As such, it is appropriate that as much of level playing field as possible be maintained, vis a vis the parties’ respective positions are concerned until the stage of final hearing.
The final hearing of this matter can be accommodated within a fairly short compass. A date for hearing will be allocated in the court’s sittings in August. This will also provide an adequate timeframe for the preparation of a family assessment or family report.
Given the cultural issues surrounding this case and the serious allegations the mother has made, I consider it appropriate that the three children concerned be independently represented in these proceedings.
The father has indicated that he is prepared to advance the mother a significant sum of money to assist her with returning to Adelaide. I propose to keep him to his word in this regard. In addition, it seems to be common ground that the mother has some family support in Adelaide. Although, from the mother’s perspective these are not her closest family associations.
In the event the mother elects to return to Adelaide, I believe that the children should live predominantly with her. However, if the mother elects to remain living in Melbourne, the children should remain in the father’s care until all the difficult issues, which this case raises, can be determined.
I will allocate a further directions hearing, for this matter, in the early New Year, when I hope it will be clear what is the situation so far as the mother’s future plans are concerned.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 23 December 2008
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