JANSSEN & JANSSEN

[2013] FCCA 2281

FEDERAL CIRCUIT COURT OF AUSTRALIA

JANSSEN & JANSSEN [2013] FCCA 2281

Catchwords:
FAMILY LAW – Children – Parenting Orders – Interim Orders – best interests of the children – independent representation of children – appointment of Independent Children’s Lawyer – allegations of family violence – need to protect children – where family violence order in force – where criminal proceedings pending in Local Court.

FAMILY LAW – Relocation – whether mother should relocate the residence of the children back to the (omitted) area.

FAMILY LAW – Venue – change of venue – whether proceeding should be transferred to Wollongong Registry – whether convenience of the parties requires transfer – limitation of expense considered – where matter has not been listed for final hearing.

Legislation:

Evidence Act 1995 (Cth), s.144

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 60DB, 67ZBB, 68L

Federal Circuit Court Rules 2001, r.8.01

Cases cited:
Benson & Owens [2011] FamCAFC 236; (2011) FLC 93-486
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Re K (1994) 17 Fam LR 537; FLC 92-461
D & SV [2003] FamCA 280; (2003) 30 Fam LR 91; FLC 93-137

Applicant: MS JANSSEN

Respondent: MR JANSSEN

File Number: SYC 5802 of 2013

Judgment of: Judge Scarlett

Hearing date: 17 December 2013

Date of Last Submission: 17 December 2013

Delivered at: Sydney

Delivered on: 19 December 2013

REPRESENTATION

Counsel for the Applicant: Mr Levy

Solicitors for the Applicant: Reid Family Lawyers

Counsel for the Respondent: Ms Goodchild

Solicitors for the Respondent: Verekers Wollongong Lawyers

ORDERS

1. The interests of the children X born (omitted) 2008, Y born (omitted) 2009 and Z born (omitted) 2011 are to be independently represented by a lawyer under the provisions of section 68L of the Family Law Act 1975 and to this end Legal Aid New South Wales is requested to provide this representation.

2. The parties are to forward to Legal Aid New South Wales at 323 Castlereagh Street Sydney within seven (7) days copies of all Applications, Responses, affidavits and all other relevant documents for the use of the Independent Children’s Lawyer when appointed.

AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER

1. The Applicant Mother is to have sole parental responsibility for the children X, Y and Z.

2. The children X, Y and Z are to live with the Mother.

3. The Father is to have telephone communication with all three children X, Y and Z between the hours of 5:00pm and 6:00pm each Monday, Wednesday and Friday and the Mother is to do all acts and things necessary to facilitate such calls, including providing a telephone number upon which the Father may telephone the children.

4. The Father is permitted to send cards and Christmas gifts to the children by forwarding the cards and gifts to the address of the Mother’s solicitors who are to forward the cards and gifts on to the Mother for her to give to the children.

5. The Application in a Case filed on 7 November 2013 is dismissed.

6. The matter is adjourned to Wednesday 29 January 2014 for further mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5802 of 2013

MS JANSSEN

Applicant

And

MR JANSSEN

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application in a Case brought by the Father, who is the Respondent to the substantive Application for parenting Orders brought by the Mother. He is seeking orders providing that:

   a)The Mother’s Application should be transferred to the Wollongong Registry of the Court;

   b)The parties should have equal shared parental responsibility for the three children of the marriage;

   c)The children should return to live in the former matrimonial home, either with the Mother if she chooses to live there, or with the Father;

   d)The children should spend defined time with the Father;

   e)The Father should have telephone communication with the children;

   f)The Mother should be restrained from moving the residence of the children from the (omitted) region; and

   g)Other ancillary orders.

2. In her Application, filed on 3^rd October 2013, the Mother sought interim Orders that:

   a)She should have sole parental responsibility for the children;

   b)An Independent Children’s Lawyer should be appointed;

   c)A child and family psychiatrist or a clinical psychologist should be appointed as an Expert witness to prepare a report about matters relating to the welfare of the children;

   d)The children should live with the Mother at all times when they are not spending time with the Father[1];

   e)Orders restraining the parties from denigrating the other parent in the presence or hearing of the children, discussing the proceedings with the children, permitting the children to have access to any of the documents filed, causing the children to be a medium for communication between the parents, using physical discipline on the children, or verbally abusing or denigrating the children;[2] and

   f)That the Respondent should pay the Applicant’s costs on an indemnity basis[3].

   [1] Which would appear to be all the time, as the mother does not in her application seek that the children should spend any time with the father at all

   [2] See the above footnote

   [3] The reason for indemnity costs is unexplained.

3. Notwithstanding the orders sought by the Mother in her Application, her counsel, Mr Levy, submitted that this was a case where the Court should make orders that:

   a)The children’s interests should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act 1975 (Cth);

   b)The Father’s application to transfer the proceedings to the Wollongong Registry of the Court should be refused; and

   c)The Father’s application requiring the Mother to relocate the children’s residence back to the (omitted) area should be refused; and

   d)The Court should not make “piecemeal” parenting orders but should rather wait until an Independent Children’s Lawyer has been appointed and can assist the Court to determine what interim parenting orders are in the children’s best interests.

Background

1. The parties first met in January 2005 and formed a relationship in November of that year. They were married on (omitted) 2006.

2. The Mother was born on (omitted) 1977. She is currently aged 36 and is a (occupation omitted) by profession.

3. The Father was born on (omitted) 1976. He is currently 37 years of age and he, too, is a (occupation omitted), a (omitted)[4].

   [4] Affidavit of Mr Janssen 6.11.2013 at paragraphs [6] and [14]

4. There are three children of the marriage:

   a)X was born on (omitted) 2008; he is aged 5 years and 10 months;

   b)Y was born on (omitted) 2009; he is aged 4 years and 1 month; and

   c)Z was born on (omitted) 2011; she is aged 2 years and 6 months.

5. The parties separated on 11^th September 2013 when the Mother left the matrimonial home at about 8:00 or 9:00pm.

6. The Mother complained to the Police at (omitted) about the Father’s behaviour. The Police applied for an Apprehended Domestic Violence Order against the Father and charged him with:

   a)Common assault; and

   b)Stalking or intimidating with intent to cause fear of physical or mental harm.

7. On 19^th September 2013 the Local Court of New South Wales at Wollongong made an interim Apprehended Domestic Violence Order against the Father.

8. On 20^th November 2013 the Father entered pleas of not guilty to the charges of common assault and stalk and intimidate and listed those matters for hearing on 22^nd January 2014. The Father’s bail was continued. The interim Apprehended Domestic Violence Order was also adjourned to 22^nd January for hearing.

9. The Mother commenced proceedings in this Court by filing an Application for interim and final parenting orders on 3^rd October 2013. The Application was returnable on 2^nd December 2013.

10. On 7^th November 2013 the Father filed a Response and the Application in a Case that is the subject of this decision.

11. On the first return date, 2^nd December, the parties were directed to attend a Child Dispute Conference with a Family Consultant, which took place at 2:00pm that same day. In her Child Dispute Conference Memorandum to Court of 2^nd December, the Family Consultant recommended the appointment of an Independent Children’s Lawyer and the obtaining of a Family report and, possibly, a psychiatric report.

12. The Application in a Case was listed for an interim hearing on 17^th December 2013.

Evidence and Submissions

1. The Father relied on the following documents:

   a)His Application in a Case;

   b)His Response; and

   c)His affidavit sworn 6^th November 2013.

2. The Mother relied on the following:

   a)Her Initiating application filed on 3^rd October 2013;

   b)Her Notice of Abuse filed on 3^rd October 2013; and

   c)Her affidavit sworn 29^th November 2013.

3. It is the Father’s evidence that he has not seen his children since the Mother left with them on 11^th September. He deposed that he had assisted in the care of the children since they were born. He deposes that he and the mother “co-parented” the children.[5]

   [5] Affidavit of Mr Janssen 6.11.2013 at [37]

4. The Father deposed that on 10^th September 2013 he and the Mother had a discussion about their sexual relationship, a discussion that had been ongoing for two years. He admits saying to the Mother “words to the effect of ‘you’re a useless wife’”.[6] He denies that he slapped her or grabbed her hair.

   [6] Ibid at [57]

5. The Father states in his affidavit that he does not know where the Mother and the children are living. He also states that the Mother withdrew first $60,000.00 from their joint account, then a further $80,000.00, leaving him with $10,000.00.

6. The Father denies that he has ever been controlling of the Mother and does not admit any violence towards her or the children. He claims to be overprotective of the children, especially X, who has a nut allergy. He specifically denies physically disciplining the children, saying:

   I never use physical force to get my point across to the children.[7]

   [7] Ibid at [132]

7. He further deposes:

   I do not use physical discipline on my children. I care for them unsupervised many days a week.[8]

   [8] Ibid at [134]

8. The Father goes on to depose:

   I admit that I do tap the children on the ears to ‘move along’ if they are in the way. It is usually a gentle tap on the back of their ears.[9]

   [9] Ibid at [136]

9. The Father also denies swearing at or in front of the children or at his Mother. He admits to swearing when the children have gone to bed “and I am usually making comments to persons who may be appearing on television”.[10]

   [10] Affidavit of Mr Janssen 6.11.2013

10. The Father deposes in support of his application to transfer the proceedings from Sydney to Wollongong that:

    a)He and the Mother have been living in the (omitted) area since 2005;

    b)The Mother has been employed in a (employer omitted) in the (omitted) area from 2008 to September 2013;

    c)The child X has been attending school at (omitted) and the two younger children have been attending child care at (omitted);

    d)He proposes to move out of the matrimonial home to allow the Mother and the children to return to live there;

    e)He is seeing a psychologist and his general practitioner, both of whom are situated in the (omitted) area, to assist him in dealing with the breakdown of his relationship and intends to provide evidence from both of them;

    f)He wishes to have a shared parenting arrangement for the children;

    g)The Mother will not suffer any inconvenience if the proceedings are transferred to (omitted) – “She could be re-employed at her former (employer omitted) or I can organise a job for her”.[11]

    [11] Ibid at [214]-[227]

11. The Mother deposes in her affidavit of 29^th November 2013 that she has experienced “systematic and sustained abuse…at the hands of Mr Janssen [12] over the term of the marriage. She claims that on 10^th September the Father slapped her across the left side of her face and told her that she was “useless”[13] and “a bad wife”.[14] She deposed that he said to her:

    “Don’t ever, ever embarrass me again. If you embarrass me again your daughter is dead”.[15]

    [12] Affidavit of Ms Janssen 29.11.2013 at [19]

    [13] Affidavit of Ms Janssen 29.11.2013 at [11]

    [14] Ibid at [25]

    [15] Ibid at [23]

12. The following day the Mother reported the incident to the (employer omitted) at the (workplace omitted) where she worked. The (omitted) drove her to the police station where she made a complaint to the Police. When she returned home the Father was angry with her for being late, as they had planned to have dinner with a mutual friend. She said that she did not want to go but the Father insisted, saying “I want to get drunk so you need to drive”[16] and tried to pull her into the garage. She telephoned the Police and said that she felt threatened or words to that effect.

    [16] Ibid at [38]

13. The Police arrived and arrested the Father. She and the children left the home that night.

14. It is the Mother’s evidence that she has been subjected to family violence and abuse throughout the relationship, from 2005 onwards. She claims that he was very controlling and sexually demanding. She believes that the Father hits the children to discipline them. She also claims that he has used offensive language, including saying to X:

    “You f***ing dog faced f***.[17]

    [17] Ibid at [151] – the words have been censored for the purposes of this decision but are quoted in full in the mother’s affidavit

15. The Mother opposes the Father’s application that she be required to relocate back to (omitted). She sets out her reasons at paragraphs [193] to [195] of her affidavit:

    193.I could not return to (omitted), especially the former matrimonial home or even the greater (omitted) area which is still quite small, for fear that Mr Janssen would enter the home (even if I changed the locks) or that I would bump into Mr Janssen in public. I would not feel safe.

    194.Also, although it is hard to admit it, I am scared that if I were to return to (omitted), there is a risk that I would fall back into an abusive/controlling relationship with Mr Janssen. The history of the relationship shows that I am vulnerable to Mr Janssen’s manipulation, such that I believed that it was my fault Mr Janssen was unhappy, that I needed to do everything he wanted to make up for it and that I was useless and failing because he was still unhappy. I do not think that at this stage, I have enough emotional and mental strength to recognise if this were to start happening again and/or resist it.

    195.The kids don’t deserve to be uprooted again. I recognise that I made the decision to leave the former matrimonial home with them however my hand was forced as I needed to move them from an unsafe environment. It would not be fair now that they are safe, secure and happy with new routines.

16. The Mother opposes the Father’s application to transfer the proceedings from the Sydney Registry, where they were commenced, to the Wollongong Registry. She deposes in her affidavit:

    I oppose Mr Janssen’s application to transfer the Court proceedings to Wollongong. It will have far less impact on Mr Janssen having to travel to Sydney for the purposes of the Court proceedings than it would on me having to travel to Wollongong in circumstances where I have the primary care of our three young children. Mr Janssen also has a much higher income than I do with which to support his and his solicitor’s travel to Sydney.[18]

    [18] Affidavit of Ms Janssen 29.11.2013 at [196]

17. Counsel for the Father, Ms Goodchild, submitted that there is no evidence of prolonged sexual physical abuse and there were significant inconsistencies in the Mother’s evidence. The appointment of an Independent Children’s Lawyer was opposed as not being required. The Mother should move back into the former matrimonial home with the children and the Father would find other accommodation. It was also submitted that the two younger children aged four years and younger and that the separation of the children from their father, which has been the case since mid-September, was harmful to the development of the children’s attachment relationship with their father.

18. Ms Goodchild referred the Court to a paper by Federal Magistrate Sexton, as Her Honour then was, entitled “Parenting Arrangements for the 0-4 age group” in support of her submission. I held that, if this document was to be relied, a hard copy should be tendered in evidence, which was subsequently done. The paper was admitted into evidence without objection.

19. As for the application to transfer the proceedings to the Wollongong Registry, Mr Levy of Counsel, who appeared for the Mother, submitted that the Mother was resident in Sydney at the time that she filed the Application and the balance of convenience supported the matter remaining in the Sydney Registry of the Court. He referred the Court to the decision of Coleman J[19] in Benson & Owens[20], a decision on appeal from what was then the Federal Magistrates Court.

    [19] As he then was

    [20] [2011] FamCAFC 236; (2011) FLC 93-486

20. As to the relocation argument, Mr Levy submitted that the Father was seeking that the Mother should be returned to the very environment that had caused her difficulty with her mental health. The Mother does not wish to return to the former matrimonial home. The Mother states that she acted as she did to remove the children from a violent environment. He referred the Court to the decision of D & SV[21]which dealt with what Mr Levy called an “intra-metropolitan relocation”. He submitted that in the fullness of time there would not be any difficulty in making alternative arrangements if the Mother were to remain in Sydney but the Father remained living in the (omitted) area.

    [21] [2003] FamCA 280; (2003) 30 Fam LR 91; FLC 93-137

21. In an interim hearing such as this, it was submitted that the Court should follow the decision of the Full Court of the Family Court in Goode & Goode[22] at [68], where the Court is enjoined to look to the less contentious matters, such as agreed facts and issues not in dispute.

    [22] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

Applications for Parenting Orders

1. Part VII of the Family Law Act 1975 deals with matters relating to children. The objects of Part VII are set out in s.60B(1) of the Act, providing for children’s best interests to be met by:

   a)Ensuring that children have the benefit of both parents having a meaningful involvement in their lives;

   b)Protecting children from physical or psychological harm;

   c)Ensuring that they receive adequate and proper parenting; and

   d)Ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

2. The principles underlying those objects are set out in s.60B(2) and include (except when it is or would be contrary to a child’s best interests):

   a)Children have a right to know and be cared for by both of their parents;

   b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development;

   c)Parents jointly share duties and responsibilities concerning their children’s care, welfare and development;

   d)Parents should agree about the future parenting of their children; and

   e)Children have a right to enjoy their culture.

3. Section 60CA of the Act requires the court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration. Section 60CC sets out the way that the Court determines what is in a child’s best interests, by having regard to the primary and additional considerations set out in subsections (2) and (3).

1. Subsection 60CC(2) is of particular relevance in this case. It provides:

   The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

2. The primary considerations are modified by s.60CC(2A), which provides that:

   In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

3. The Court is required by s.61DA of the act to apply the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of abuse or family violence and it may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for his or her parents to have equal shared parental responsibility for the child.

4. Subsection 61DA(3) provides that where the Court is making interim orders, as in the present case, the presumption of equal shared parental responsibilities unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied.

5. Where the Court does make an order providing for children’s parents to have equal shared parental responsibility for them, the Court is then required by s.65DAA(1) to consider whether it would be both in the children’s best interests and reasonably practicable for the child to spend equal time with each parent. If the Court does not make an order to that effect, it must then consider under s.65DAA(2) whether it would be both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.

6. All of these matters where they are relevant.

Appointment of an Independent Children’s Lawyer

1. Subsection 68L(2) of the Family Law Act 1975 gives the Court the power to order that children the subject of proceedings where their welfare or best interests are under consideration may be independently represented. It provides that:

   If it appears to the court that the child’s interests in the proceedings ought to be independently represented, the court:

   (a)may order that the child’s interests in the proceedings are to be independently represented by a lawyer; and

   (b)may make such other orders as it considers necessary to secure that independent representation of the child’s interests.

2. The decision of the Full Court of the Family Court in Re K[23], although somewhat out-dated in its terminology, is still the leading authority on the criteria for the appointment of an Independent Children’s Lawyer. There appear to be a number of matters in this case that would indicate that the children’s interests should be independently represented by a lawyer, notwithstanding that the children themselves are quite young and will not be able to express much in the way of views to an Independent Children’s Lawyer.

   [23] (1994) 17 Fam LR 537; FLC 92-461

3. The reasons that appear to be relevant are:

   a)that there is an apparently intractable conflict between the children’s parents;

   b)there are allegations by the Mother of family violence by the father and that she is in serious fear of him; and

   c)the Father’s contention in his Case Outline that the Mother “has clearly had mental health issues. She had what seems to be a breakdown…”

4. In my view it is appropriate to order that an Independent Children’s Lawyer should be appointed.

Relocation

1. In my view, the Mother has established a good case to show why she should not be required to relocate the children’s residence back to Sydney. She does not wish to move back into the former matrimonial home, where she claims the Father has been abusive and violent to her. The Father has suggested that she could go back to her former practice, but this ignores the fact that there is an Apprehended Domestic Violence Order against the Father, naming her as a protected person, and she does not want the Father to be nearby. She has not disclosed her current residential address and does not wish the Father to find that out.

2. It is relevant to consider that the Mother has relocated a relatively short distance, from the (omitted) area to the Sydney area. The Full Court of the Family Court considered a relocation of a comparatively short distance in D & SV[24], which concerned the case of a party moving from an eastern suburb of Melbourne to (omitted), near (omitted), a distance of about 115 kilometres. Their Honours (Nicholson CJ, Kay and Monteith JJ) considered this issue at [35]-[41] and said at [35]:

   The case before us concerns intrastate movement that could almost be characterised as intrametropolitan movement.

   [24] [2003] FamCA 280; (2003) 30 Fam LR 91; FLC 93-137

3. Their Honours went on to hold at [37]-[40]:

   [37]While it was not a ground of appeal, we raised with counsel for the respondent the issue of whether in the context of this relatively short move, the relocation principles in those cases should apply to this case. It was her submission that any move of residence that requires a significant change in existing parenting arrangements can bring the principles discussed in those cases into play. While we did not hear argument contesting that proposition, it seems to us to be an approach that may be open in some cases. However, the normal reason for applying the reasoning used in such cases, particularly where residence is not seriously in issue, is to seek to restrict the freedom of movement of the residence parent. Where the move is over a relatively short distance such as this one, we would caution against the making of orders that restrict the residence parent’s freedom of movement. The inquiry should be directed more at alternative contact or shared residence arrangements.

   [38]Clearly the less distance involved in the move, the more readily satisfactory alternative contact arrangements or logistical arrangements for shared residence are likely to be available. A move over a great distance may render shared residence or meaningful contact difficult if not impossible.

   [39]The amount of emphasis to be given to one or other of the competing matters in a relocation case will change depending on the degree of relocation involved and the degree of interference with the existing arrangements.

   [40]Where a move interstate or overseas requires a dramatic and drastic change in the nature of the manner in which the parents share in their children’s lives, much emphasis might be given to the deleterious effects of such a move on the relationship with the other parent. Where the move is within the same state or certainly within the same city resulting in room for significant contact, such a move might well face less resistance from the court.  

4. There was no evidence put to the Court about the distance between Sydney and (omitted) or the travelling time. However, s.144 of the Evidence Act 1995 (Cth) provides at subsection (1) that:

   Proof is not required about knowledge that is not reasonably open to question and is:

   (a)common knowledge in the locality in which the proceeding is being heard or generally; or

   (b)capable of verification by reference to a document the authority of which cannot reasonably be questioned.

5. In my view, as this case is being heard in Sydney, the distance between (omitted) and Sydney is common knowledge, and it is most certainly significantly less than the 115 km between Melbourne and (omitted). It is also common knowledge that there are good roads and a frequent inter-urban train service.

6. This is a case where the Court should consider alternative arrangements for the Father to spend time with the children, if that should in fact be held to be in the children’s best interests.

7. I am not satisfied that it is in the children’s best interests for the Mother to relocate them back to live in the (omitted) area.  

Transfer of Proceedings

1. The rules regarding an application for a change of venue within the Court can be found in rule 8.01, which provides:

   (1)A party who files an application or response in a proceeding may apply to have the proceeding heard in another registry of the Court.

   (2)In considering an application, the Court must have regard to:

   (a)     the convenience of the parties; and

   (b)the limiting of expense and the cost of the proceedings; and

   (c)whether the matter has been listed for final hearing; and

   (d)     any other relevant matter.

2. It is without doubt that the Mother has chosen an appropriate registry in which to file her application. She and the children are now living in the Sydney metropolitan area and she has consulted a firm of solicitors who practise in a Sydney suburb. The Mother does not wish to move back to the (omitted) area and she certainly does not want to move back into the former matrimonial home.

3. It is more convenient for the mother for this proceeding to remain in the Sydney Registry of the Court.

4. It is less convenient for the Father for the proceeding to remain in Sydney and it would be more convenient for the proceeding to be transferred to Wollongong. He still resides in the (omitted) area and (employment omitted) at the (employer omitted). He has consulted a well-known firm of Wollongong solicitors.

5. The Mother has deposed that the Father has a greater income and is therefore more easily able to afford to travel to Sydney than she would be able to afford to travel to (omitted). It probably will be more expensive for the Father if the proceedings remain in Sydney, but the situation is that so far his solicitor has been granted leave to attend by telephone and on each of the two court appearances the Father has been represented by Counsel whose chambers are in Sydney.

6. The fact is that, unless the mother is required to relocate the children’s residence back to the (omitted) area, the children will remain living in Sydney and, in my view, the location of the children is an important factor in considering the balance of convenience.

7. It is, as I said at [54] above, common knowledge that (omitted) is not a great distance from Sydney, there are good roads and a frequent inter-urban train service.

8. In my view, the extra expense that may be sustained by the Father in continuing this proceeding in Sydney rather than (omitted) has not been shown to be prohibitive, and, indeed, no evidence to this effect has been led at all.

9. The Application has not been listed for final hearing. This does not affect the case of either party in deciding whether or not the proceeding should be transferred to the Wollongong Registry.

10. There is no evidence before the Court to show that the matter will be given a final hearing date any sooner in Wollongong than in Sydney.

11. I am not satisfied that a case has been made out to transfer the proceeding to the Wollongong Registry and that application will be refused.

Parental Responsibility

1. Whilst s. 61DA(3) provides that where the Court is making interim orders the presumption of equal shared parental responsibility applies unless the Court considers it would not be appropriate in the circumstances. This is a case where I consider that the mother should have sole parental responsibility for the children until further order.

2. The parties are in high conflict and the mother has made serious allegations of family violence. There is an interim Apprehended Domestic Violence Order in force, which is to be heard as a defended matter on 22^nd January 2014. The Father also faces two charges, to which he has entered a plea of not guilty.    These charges are also to be heard on 22^nd January.

3. Certainly, until the result of the proceedings in the Local Court is known, this Court should find that the equal shared parental responsibility presumption does not apply.

4. I am also in some agreement with counsel for the Mother that the Court should not “piecemeal” parenting orders and the question of parenting orders should be considered once the Court has the assistance of an Independent Children’s Lawyer. However, these three young children have had no contact with their father since 11^th September, a period of more than three months, and they may well be wondering about him. It is not unknown for children to be concerned about the welfare of an absent parent.

5. With the approach of Christmas, the Father should be able to forward Christmas cards and gifts to the children so that they are aware that he still loves them and cares about them. These cards and gifts can be sent to the Mother’s solicitor, who can then forward them on to the Mother to give to the children.

6. Again, it would seem to be in the children’s interests that they should be able to speak to their father on the telephone, and I propose to order that they should be able to do so each Monday, Wednesday and Friday, as he seeks in his Response.

7. The entire matter can be further considered on 29^th January 2014, by which time the proceedings in the Local Court will have been heard and there should be an Independent Children’s Lawyer on the record.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  8 January 2014