Kitson and Anor and Calise
[2013] FCCA 1931
•13 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KITSON & ANOR & CALISE | [2013] FCCA 1931 |
| Catchwords: FAMILY LAW – Relocation. |
| Legislation: Family Law Act 1975, ss.69ZN, 60CA, 65DAA, 61F, 60CA, 61DA, 60CC, 61C, 60A, 69ZW, 10J, 65F, 67ZB, 67ZBB, 13C, 11 Children and Young Persons Protection Act 1998 (NSW), s.248 |
| AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 Morgan & Miles (2007) FLC 93-343 Palmer & Hammer (No.2) [2011] FamCAFC 196 Taylor & Barker (2007) 37 FAM LR 461 Sayer & Radcliffe and Anor [2012] FamCAFC 209 Starr & Duggan [2009] FamCAFC 115 Goode & Goode (2006) FLC 93-286 Johnson & Page [2007] FamCA 1235 Green & Graham [2011] FamCAFC 248 Beaumond & Hardiman [2013] FCCA 1173 |
| Applicant: | MR KITSON AND MS KITSON |
| Respondent: | MS CALISE |
| File Number: | AYC 310 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 13 September 2013 |
| Date of Last Submission: | 13 September 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 13 September 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Giacomo |
| Solicitors for the Respondent: | Mr Mackenzie |
ORDERS
Each of the parents Mr Kitson and Ms Calise shall, pursuant to s.61C of the Family Law Act 1975, have parental responsibility for the child, [X] born [in] 2011, when she is in their respective care.
[X] shall live with her mother.
The Applicants, Mr Kitson and Ms Kitson , shall spend time with the child at such times, for such periods and with such frequency as can be accommodated by each of the [B] Contact Centre and [W] Supervised Contact Centre (“the centre”).
To facilitate the above time arrangements each party shall:
(a)Forthwith and within 72 hours contact each of the centres and arrange and attend the first available and offered intake appointment with the centre to enable an assessment to be made as to suitability for attendance at the centre and inclusion within the centre’s program;
(b)Expeditiously provide all information or documents requested of them, complete all forms and do all things, sign all documents and give all consent, instructions and authorities as may be necessary to enable completion of all intake and assessment processes by the centre;
(c)Upon acceptance by the centre for the purpose of monitored/supervised time attend at such times, dates and places and pay such fees as are advised by the agency and continue to do so until that service is no longer required or is withdrawn;
(d)Present the above child to the centre at such times, dates and places as are advised;
(e)Follow all and any rules or directions of the centre.
In the event that the provision of service is determined to be inappropriate or service is withdrawn at any time then each of the parties is to advise the Court of that circumstance as soon as practicable after being advised of such determination and the proceedings will be relisted on seven (7) days notice to review the matter and make such further orders as may be required.
IT IS NOTED THAT the intention of the above order is that the parties will utilise each of the supervised contact centres, it is requested the centres liaise with each other with a view of time occurring not less than fortnightly.
Within seven (7) days, the father shall attend to provide a sample for forensic testing with respect to the presence of cannaboids, opiates, amphetamines, methamphetamines, benzoids and ice and such sample shall be provided and testing shall occur in accordance with the appropriate Australian standard for supervised chain of custody testing and upon provision of a testing report arising from same, each parent shall cause and ensure that report to be provided to the Independent Children’s Lawyer and the other party.
In the event that the testing report discloses a reportable quantity of any of the above substances, that father shall then continue to attend and provide a sample and cause such sample to be tested in accordance with the above order no less than each seven (7) days and until such time as a report is provided which discloses no reportable quantity of any of the tested substances.
In the event any test is positive as above, the father shall then forthwith contact such service local to them as the Independent Children’s Lawyer may nominate for the purpose of enrolling in a course or program designed to assist them in addressing their drug use and becoming and remaining drug free.
Each party shall, within 4 weeks, register with and complete the on-line program offered by that site and will, on completion, print a certificate demonstrating completion and provide a copy to all other parties.
Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of Centrecare [W] (the father) and Family Relationships Centre Newcastle (the mother) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.
In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.
Pursuant to s.68L of the Family Law Act 1975 an Independent Children’s Lawyer shall be appointed to represent the interests of the children the subject of these proceedings, [X] born [in] 2011.
The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order.
Each of the parties shall within seven (7) days of any request complete and provide to the Independent Children’s Lawyer a parenting questionnaire and/or such other information as may be requested.
Each of the parties shall within seven (7) days (or forthwith upon filing) forward to the Legal Aid Commission (Sydney Office) copies of all
(a)Any medical reports they hold relating to the child;
(b)Any psychological or school counsellor or pre-school intervention reports they hold relating to the child;
(c)Any school reports they hold for the child;
(d)Any other documents they hold and wish the Independents Children’s Lawyer to see and/or that they intend to seek to tender to the Court or rely on in these proceedings.
Each of the parties shall present the child to such places and at such times and dates as are requested and/or advised by the Independent Children’s Lawyer for the purpose of the Independent Children’s Lawyer meeting with the child.
Leave is granted to the Independent Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to s.69ZW and/or in response to subpoena.
The proceedings are transferred to the Newcastle Registry of the Federal Circuit Court of Australia.
The proceedings are adjourned to 9.30am on 29 October 2013 for further mention and directions before Judge Coakes.
IT IS NOTED that publication of this judgment under the pseudonym Kitson & Anor & Calise is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
AYC 310 of 2013
| MR KITSON AND MS KITSON |
Applicant
And
| MS CALISE |
Respondent
REASONS FOR JUDGMENT
Parties and Orders Sought
These are proceedings involving competing interim applications with respect to a young child, [X], born [in] 2011 who is two and a half years of age.
The parties to the proceedings are [X]’s father, Mr Kitson, who is one of two joint Applicants, [X]’s paternal grandmother Ms Kitson being the other joint Applicant and [X]’s mother, Ms Calise, the Respondent.
The proceedings were commenced in the Local Court at [G] by an Application filed 5 August 2013. That Application was made jointly by Mr Kitson and his mother, Ms Kitson. The Application seeks orders on both a final and interim basis.
On an interim basis, orders are sought in the following terms:
a)That should the mother refuse to return to [G] with the child forthwith that [X] live with the paternal grandmother and the father.
b)Pursuant to section 67Q, that a recovery order issue.
c)Should the mother return to [G] with [X], then [X] spend time with the father and the paternal grandmother over a two week cycle:
i)In week 1, every second weekend from 5 pm until Sunday 5 pm; and
ii)In week 2, from 5 pm Wednesday to 5 pm Thursday.
In submissions the Applicants indicate that relief, as sought in the Application, is no longer pressed. What is, in fact, sought is an order that would require [X]’s return to the [G] area.
The mother has made clear, prior to submissions commencing, that she would not countenance the child’s return to [G] other than in her care and, thus, and on that basis, the father proposes that his time with [X] occur three or four times a week for day only periods of time without supervision or, if supervision were required, that it be provided by his mother, the joint applicant.
The mother, for her part, in a Response filed by her in the Local Court at [G], 12 August 2013, seeks orders in the following terms:
a)That [X] continue to live with her mother in Newcastle.
b)That the respondent mother grant supervised access to the applicant father.
Leaving aside any semantic argument that might arise from the fashion in which that relief is proposed, it is to be observed that:
a)No final relief is sought by the mother and, thus, to that extent, the proceedings are presently undefended. That will be remedied.
b)Secondly, the mother’s proposal is absent any specificity or particularisation of that which is proposed.
During submissions, it has become clear that what the mother in fact proposes is that, if she continues to live in the Newcastle area (to which area she relocated with [X] in mid July 2013), time occur on an unspecified basis in [omitted], being approximately midway between the Applicants’ home in [G] and the mother’s in Newcastle. The mother proposes that time be supervised by the maternal grandmother, whose name has been ascertained as Ms H.
In the event that the mother is required to return with [X] from Newcastle to [G] then the mother proposes that time occur at the home and under the supervision of the maternal grandmother in [omitted] which is a township a short distance from [G] where the Applicants reside.
Material Considered
Following the commencement of the proceedings in the Local Court, the matter came before a State Magistrate who transferred the proceedings to the Federal Circuit Court of Australia sitting at Albury.
The matter came before me on 26 August 2013 and, on that date, the parties were directed to attend a Child Dispute Conference some two days later, 28 August 2013, and a direction made for the parties to file and serve any further material by 6 September 2013. In addition:
a)A request was made, pursuant to section 248 of the Children and Young Persons Protection Act 1998 (NSW) for a person history document to be provided with respect to [X].
b)An order was made pursuant to section 69ZW for material to be produced by New South Wales Police, although that material is not yet before the Court.
c)The proceedings were otherwise adjourned to today for interim hearing.
The matter has proceeded today on the basis of the material filed and the submissions made.
I have considered today, as had been considered on the first return date of the proceedings, the Person History Document together with:
a)In the case of the Applicants:
i)Their Application initiating proceedings filed 5 August 2013,
ii)The Affidavit of the father sworn or affirmed on 1 August, filed 5 August 2013
iii)The Affidavit of the paternal grandmother sworn or affirmed on 1 August 2013, filed 5 August 2013.
b)In the mother’s case, I have read and considered:
i)Her Response filed 12 August 2013;
ii)Her Affidavit sworn or affirmed 9 August 2013 and filed 12 August 2013;
iii)An Affidavit by the mother’s current partner, Mr M, sworn or affirmed 10 September 2013 and filed by fax yesterday. No objection has been taken to that document.
c)I have also read and considered the Child Dispute Conference Memorandum completed following the parties’ attendance by telephone with Ms D, Family Consultant, 28 August 2013.
Agreed facts
Before turning to those more objective sources of information, being the Child Dispute Conference Memorandum and the Family History Document, I note that there is no dispute between the parties that they separated prior to young [X]’s birth.
The father’s evidence, in that regard, suggests a date in 2011, unspecified but prior to the child’s birth.
The mother suggests that separation occurred in or about July 2010, being nine months prior to the child’s birth and, accordingly, roughly corresponding with what would have been the date of conception.
The parties also agree that from shortly after [X]’s birth, accordingly, approximately May 2011, and until September 2012, that [X] spent time with her father each alternate weekend from Friday to Sunday and for a period during the week.
The father asserts that this involved an extension to the weekend on most occasions and frequently saw [X] in his care from Friday through to the following Tuesday or Wednesday.
The mother asserts that it was for an occasional day during the intervening period. Nothing of any great moment turns upon the distinction between the parties’ evidence in that regard and it is to be noted that there is agreement that time had occurred each alternate weekend from Friday to Sunday, at the very least.
There is also agreement and, in the case of Mr Kitson, a concession that he fell upon hard times, in Dickensian terms, shortly after the separation of the parties and in about August or September 2012.
Mr Kitson deposes, at paragraph 12 of his Affidavit, that during this period, he lost his job as a [omitted].
The mother suggests, although her source of knowledge is unclear, that the father was dismissed from that employment as a consequence of a violent assault by him upon another employee and to which the Police were called. The section 69ZW order has not elicited a response as yet and, accordingly, there is no way for that suggestion to be corroborated or disaffirmed.
The father suggests also that at that time that he came upon and discovered the body of a deceased neighbour. In addition, the father deposes that he and his then girlfriend, although that relationship would appear to have ceased, being a young lady, Ms L, had suffered the misfortune of a premature birth of a child of their relationship which child sadly passed away very shortly after birth.
The father indicates that following those events that he became increasingly depressed at not seeing [X]. It would seem that those events preceded the termination of the relationship between he and [X] and the mother asserts that such events as the father concedes were the cause of such termination.
The father indicates at paragraph 13 of his Affidavit that in or corresponding with that period that he began drinking heavily and began taking illicit substances. As a consequence, in September 2012, Mr Kitson was admitted to an institution, [G] House, in relation to his mental health after making threats of self-harm. He indicates he was admitted for three to four days.
In November 2012, Mr Kitson was again admitted, this time to [N] House in Canberra, after threatening self-harm. Mr Kitson was admitted for two days then released.
The father concedes a further incident of attempted self-harm and further admission in May 2013, this time an admission to [G] Hospital. He asserts that he was admitted for “a couple of hours” and then discharged. He has, since that time, moved in with his parents and made a number of lifestyle changes.
Departmental Involvement
In turning to the Family History Report it is to be noted and acknowledged that same has come to the Court through a request made under State legislation and in accordance with a present pilot operated between the Department and the Federal Circuit Court and operating in my list and that of one other Federal Judge.
The document itself, as a summary, is particularly useful, helpful and informative.
I place clearly on record my thanks to the Department for their speedy compliance with the request and the significant help that they have provided through the provision of the document. The Person History Report has been made available to the parties and was tendered both today and when the proceedings were before the Court previously.
The document suggests that there have been a number of notifications to the Department which have related to and included [X] as well as two other children, being a child, [Y], a child of Mr Kitson’s relationship with his now former partner Ms L, as well as a child of that former partner, [Z].
The first of the notifications to the Department occurred on 1 May 2012 when there was a suggestion of a risk of physical harm or injury to [X].
The next notification was on 4 May when there were concerns raised with respect to [X] and the then unborn child referred to above.
On 9 September 2012, a further notification was made regarding the exposure of children, noted as [Y], [X] and [Z], to domestic violence.
A notification was made on 12 November 2012 regarding [Y], [X] and [Z] being inadequately supervised.
A notification was made on 20 November 2012 with respect to [X] and a suggestion of drug abuse by her carer. It is not clear who the “carer” as referred to be.
Similar notifications were made on 12 February 2013 and on 17 May and 17 July 2013.
No action has been taken with respect to any of those notifications. That is in no way a criticism of the Department’s handling of same but, in all probability, a reflection of the Department having made enquiry and having been satisfied that appropriate steps were taken to address such concerns as had arisen, particularly as regards the latter allegations.
Child Dispute Conference Memorandum
The Child Dispute Conference Memorandum provides as close as is possible to objective evidence in these proceedings.
Whilst the Memorandum largely relates to the reports by each it also contains some comment by the Family Consultant which is of some considerable assistance, in the context of this case, dealing with a very young child whom, there is no dispute, has had no time or communication with the Applicants for 12 months.
It is suggested, under the heading “Family Safety Factors” that the mother alleges significant family violence between her and Mr Kitson. Family violence is suggested to have occurred throughout their relationship with each other which relationship subsisted for some eight years. This is suggested to have included both physical and serious verbal family violence.
The mother also suggests that the father has perpetrated family violence against or towards or, at least, in the presence of, his now former partner, being a relationship subsequent to that with the mother. The Person History Report would potentially infer some tacit support for that suggestion.
Under the heading “Mental Health”, the following is reported:
The father has suffered with depression for a number of years. He stated that his mental health seriously deteriorated in 2012 after he experienced a number of a losses and stresses as described in his affidavit. He said he has had suicidal ideation and has self harmed. He has been admitted to psychiatrist units on a few occasions. He said that he self harmed and needed to attended to attend the [G] Hospital for medical treatment in May 2013.
It is to be noted that the father’s Affidavit suggests threats of self-harm rather than any active attempt.
The Memorandum continues:
He said he attends appointments with his GP and has, more recently, been placed on medication but he is still awaiting to be referred to a psychologist for counselling.
The memo suggests that there is some real delay, which I accept, due to the regional nature of those services. It continues:
He said that the public mental health service, which he thinks is based in [W], has not offered him any follow up assistance. He said that he lives with his parents who offer him considerable support which was confirmed by the paternal grandmother.
Under the heading “Drugs and Alcohol” it is indicated:
The father indicated that he used illicit substances and was consuming alcohol heavily in 2012 due to a number of felt stressors. The father said he presently uses cannabis and drinks alcohol rarely. The mother alleges that the father and his partner, now former partner, were using ice and that the father presently lives with “drug dealers” and is not actually permanently living at his parents’ home. The father indicated he is prepared to undergo drug screens if required by the Court.
The father has, through his Counsel, confirmed that consent. It continues:
The father indicated the child protection authorities in New South Wales were involved with his other child when he was in a relationship with the child’s mother. He said that this related to concerns that they held about drug usage and he was required to complete drug screens which were clear. He said that they subsequently ceased their involvement.
The Family History Report would suggest that the concerns extend beyond drug usage and included concerns with respect to exposure to family violence.
Under the heading “Issues Relating to Children” two significant issues are raised. Firstly, it is suggested:
If the mother’s allegations about the child’s exposure to serious family violence in the father’s former relationship are correct, she may have acted protectively when she stopped the child from spending unsupervised time with the father. The mother has consistently provided the child’s primary care and is probably the child’s key attachment figure.
I will return to that issue shortly by reference to the parties’ evidence.
Secondly, it is suggested, as regards disruption to the child’s relationship with the Father:
The child has not spent time with the father since about September 2012 and, considering her tender years, she would not be expected to have recall to her father and their past relationship. At this stage, the child would need a safe and supportive environment in which to reconnect with the father which may involve structured supervised time if deemed appropriate by the Court. In regards to supervised time, at this time, the paternal grandmother would be as unfamiliar to the child as the father.
The Memorandum also highlights the significant difficulties extant as a consequence of the distance between the parents’ homes being some eight hours’ drive.
The Memorandum finally notes that the parents do not communicate and have a very poor and distrustful relationship.
The father’s time with [X]
The father’s evidence is not contested as regards the care arrangements for the child following her birth and until September 2012, (at least to the extent of alternate weekend time having occurred).
It is not clear where the father was living during that period of time but it would seem not with his own parents. That is not to suggest, however, that they did not have significant involvement during the father’s time.
The father, in his own evidence, suggests that, in May 2012, a discussion occurred between he and the mother and that, during that discussion, the mother indicated:
I’m thinking about tying up all loose ends down here and moving to Newcastle and taking [X] with me.
The father suggests he responded:
You are not allowed to take my daughter away.
And the mother replied:
I need to do what’s best for me and move on with my life. It would be best for [X].
The father then indicates, at paragraph 10 of his affidavit:
In August or September 2012, I agreed to the mother relocating to Newcastle with [X].
At paragraph 11, the father indicates that his time with [X] then ceased and, thus, he has not seen her for about 12 months. He deposes as follows:
In September 2012, the mother came to collect [X] from my home at the end of the visit. I was in the lounge room cuddling [X] and crying because I did not want [X] to relocate. The mother picked [X] up and said to me words to the effect, “Until you straighten your life out, you are no longer having anything to do with my daughter.”
The mother’s version of events is not dissimilar to that of the father. The mother suggests, in her material, at paragraph 10 thereof, as follows:
In about September 2012, I went to pick up [X] from the father’s place in [G] at about 1 pm with my friend’s 12 year old daughter. The father was holding [X] in his arms. He was rocking backwards and forwards in his chair and appeared to be both heavily intoxicated and under the influence of drugs. There was a strong smell of alcohol in the room and there was a half empty bottle of beer on the floor. The father appeared to have lost control of his emotions and was sobbing uncontrollably while being angry and intimidating at the same time.
At paragraph 11, the mother indicates:
I took [X] from his arms –
entirely consistent with the father’s evidence –
- and said to the father words to the effect, “Until you straighten yourself out, you’re not going to have anything to do with my daughter.”
That is entirely consistent with the father’s evidence.
The father is then suggested to have shouted at the mother in “a violent and intimidating manner”:
You are not fucking taking [X] from here.
The mother suggests she was then extremely anxious about her safety and wellbeing and that of [X] if she were to be left in the father’s care unsupervised.
Drug and Alcohol use
The mother gives evidence, albeit in a form that would be objectionable, as to the father’s use of drugs and alcohol in the past. She asserts that, through her personal observation, the father had, for four years prior to September 2012, consumed drugs and alcohol and regularly consumed the drug ice. She suggests that this had continued to occur while the father was in a relationship with Ms L. The mother says that she has personally seen the father consuming such drugs.
Family Violence
The mother indicates, in her material, as the father conceded in the Child Dispute Conference Memorandum, albeit only after receipt of the mother’s material, that the Police had been called to the father’s home during his relationship with Ms L due to violent arguments.
The Family History Report would provide some corroboration for that alleged by the mother and now conceded by the father, at least in part.
There are no records before this Court from the Police.
There are no records before this Court from [G] House, [N] House or [G] Hospital and, thus, the Court is not in a position to determine the veracity or otherwise of that stated by the father with respect to those admissions. They are, however, now and belatedly disclosed by the father and they are, however, concerning.
Family Dispute Resolution
The other aspect of the evidence which is concerning is the inclusion in the mother’s material, at paragraph 25, of material that is clearly and comprehensively inadmissible and disclosing, as it does, that which transpired during Family Dispute Resolution. As such, the material in paragraph 25, other than deposing to the fact that a Legal Aid Conference, a form of Family Dispute Resolution, occurred, offends section 10J of the Act, is inadmissible and is, thus, struck out.
That does not, in any way, derogate from the Court’s obligation to consider the evidence that is available, nor does it detract from the evidence led by the mother.
Father’s other child
The father otherwise indicates in his evidence that he has a child from his relationship with Ms L, being a child [Y], born [in] 2012. It is suggested by the father that he sees [Y] almost every day and that she stays overnight with him two to three times per week.
The father asserts that he continues to live at the home of his parents, his mother being a joint Applicant. There is no significant material regarding those arrangements and I am satisfied based on the evidence of the father and by his mother, Ms Kitson, that the home is entirely appropriate for the needs of the parties and the child.
The mother’s move to Newcastle
The other aspect of the evidence which is the subject of some significant contention is the mother’s move with [X] from [G] to Newcastle.
The father suggests that he became aware of the mother’s actual move on or about 15 July 2013 when he was told by his former girlfriend that she had seen the mother and been told something regarding the move.
The mother concedes her move occurred in the early to mid-part of July 2013.
The mother indicates that she is presently living with her partner,
Mr M, in a home rented in his name at [omitted], a suburb of Newcastle. Mr M has, as indicated above, sworn an Affidavit which is before the Court. There is nothing of any concern in relation to his evidence.
It is suggested by the father that Ms Calise’s relationship with Mr M, being, as it were, a cohabitation of some nine weeks of length, is uncertain and could not be seen as stable.
The evidence of Ms Calise and Mr M, albeit brief and, in many ways, patchy, would suggest that they met in June 2012, about the time of the birth of Mr Kitson’s youngest child, and that their relationship has continued slowly and gradually until their cohabitation mid July 2013.
Orders sought
The orders that each of the parties seek are suggested by them to be in the child’s best interests. It, thus, falls to the Court to determine what will happen with the matter.
A number of further orders are recommended by the Family Consultant which do not bear directly upon the substance of parenting arrangements. They relate to:
a)The parties’ participation in Family Counselling Services, which orders I propose to make as orders pursuant to s.13C and in furtherance of s.65F;
b)Regular drug screening with respect to the father, to which orders he consents and, thus, which orders I propose to make; and,
c)The appointment of an Independent Children’s Lawyer, which is not opposed by either party. Those orders will, accordingly, be made in due course.
What would also arise, although it has not been addressed by the parties or either of them in their evidence, would be the venue in which the proceedings are to be conducted, dependent upon the outcome of this interim determination.
I am urged, in the case of the Applicants, to make orders which require [X]’s return and, thus, from the mother’s position, the mother’s return to the [G] area.
It is suggested by Counsel for the Applicants that the present state of case law, including, but not limited to, Morgan & Miles, would indicate that there should be no interim determination which allows, permits or facilitates relocation, save in an “emergency situation”, however that may be defined.
I, thus, turn to the legislative pathway and relevant case law which must be applied in dealing with these proceedings.
Case law
The relevant case law, I am satisfied, includes the High Court’s decisions in AMS & AIF, U & U and the Full Court’s decisions in Morgan & Miles, Palmer & Hammer, Taylor & Barker, Sayer & Radcliffe and Starr & Dugan. I have recently reviewed those authorities under the heading “Approach to Applications Involving a Relocation of the Child”, (paragraphs 166 to 181) in Beaumond & Hardiman which I incorporate those paragraphs into these reasons:
Case Law regarding relocation
166. The specific matters which relate to a relocation case, which in any event are otherwise parenting proceedings to be dealt with under Part VII, are addressed at some length by Kirby J in his decision in AMS & AIF. Specifically, his Honour commencing at paragraph 136 set out nine specific factors which one might consider, I incorporate paragraphs 136 to 149 of that decision herein and as follows:
o 136. At least until the second half of the eighteenth century, a child born to unmarried parents, called "illegitimate", was regarded by the common law as filius nullius. Consequently such a child was under the legal guardianship of nobody. The applicable law was so strict that even until the end of the nineteenth century an illegitimate child was not regarded as being in the custody of anyone, even of its mother. However, in Barnardo v McHugh, the House of Lords recognised the mother's legal right to the custody of her illegitimate child. The change of direction in the law was the result of an inference drawn from the Poor Law Acts imposing statutory duties on the mother in relation to the maintenance of such a child.
o 137. Before and after the enactment of FLA 1975 and FCA 1975, developments occurred in Australia to occasion further quite radical changes to the applicable law. The first was an alteration in community attitudes to the status of illegitimacy and the growth of the number of relationships between couples outside marriage to whom children are born. These developments led to many legislative changes. Relevant to the present appeals was the reference to the Federal Parliament by the Parliaments of all States except Western Australia of their legislative powers in respect of children. This led, in turn, to the amendment of FLA 1975 to cover all children in those affected jurisdictions: those born to married parents (nuptial) and those born to parents who were not married (ex-nuptial).
o 138. The second development arose out of the significant increase in the number of divorces granted annually affecting large numbers of children. This fact occasioned inquiries aimed at reducing the "win/lose mentality in which parents may appear to be pitted against each other to the detriment of the children". Reports by the Family Law Council and by a Joint Select Committee of the Parliament proposed changes to FLA 1975, addressed to applicable nomenclature, principles and procedures. Many of these proposals were adopted by the Family Law Reform Act 1995 (Cth). Those reforms were not immediately copied in the Western Australian law. However, many of them were introduced into the law of that State by FCA 1997.
o 139. The third development of relevance arises from the growing influence in recent years, including in this area of the law, of international law to which reference will later be made.
o 140. Relocation cases have long presented special problems for judicial decisions concerning the custody of children. But a fourth development has added to the number, variety and urgency of decisions concerning the relocation of parents having custody of a child. Two particular features of Australian society may be noted. The first is that, overwhelmingly, women constitute the residence parent to whom, in the old nomenclature, "custody" is granted. Of single parent families, the mother is reportedly the residence parent in approximately 84% of cases. Accordingly, in practical terms, court orders restraining movement of a custodial (or residence) parent ordinarily exert inhibitions on the freedom of movement of women, not men. Another feature of the Australian scene, not necessarily reflected to the same degree in other jurisdictions, is the very large proportion of the population born overseas, with family links to which a party to a marriage or relationship which has broken down may return with their child.
o Relocation of a child's residence - general principles
o 141. This Court comes to the consideration of the arguments in these appeals with the benefit of at least thirty years of consideration of like problems by appellate courts in Australia and other common law jurisdictions. I derive the following general propositions from the authorities.
o 142. First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. Care must therefore be observed in applying propositions advanced in particular jurisdictions where the legislative duties of the courts are relevantly different. Necessarily, the facts of each case are unique. Those facts call forth a "careful and delicate analysis", which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approach.
o 143. Secondly, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides. It is necessary for a court, making decisions affecting the child's place of residence, to attempt a resolution of often irreconcilable considerations. Statute may, and commonly does, instruct that the "welfare" (or "best interests") of the child should be the paramount consideration. It may provide a list of considerations or "principles" to be applied in the exercise of the court's powers. However, the "paramount" consideration is not the same as the "sole" or "only" consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.
o 144. Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
o 145. Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
o 146. Fifthly, whilst legislative reform sometimes reflecting international law, has laid increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one. Courts recognise the implications of the application of that right for the custodial (or residence) parent, and particularly because most of them are women. To avoid unnecessary derogations from women's equality or the "feminisation of poverty" resulting from the effective immobilisation of a custodial (or residence) parent, some Canadian judges have lately proposed a presumptive deference in favour of the right of the custodial (or residence) parent to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, is demonstrated to the contrary. Although this presumption was supported by a minority in the Supreme Court of Canada in Gordon v Goertz, it was rejected by the majority as incompatible with the individualised assessment required by the statute, addressed as it is to the best interests of the child. The objective of the minority was understandable. However, the reasoning of the majority is preferable, at least so far as the applicable Australian legislation is concerned.
o 147. Sixthly, in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community. But even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent. Proof that the custodial (or residence) parent has remarried and wishes to join a new spouse overseas; wishes to return to a supportive family in the land of origin, or has a well thought out and reasonable plan of migration may suffice to convince the court having jurisdiction over the child, that the best interests of the child favour continuance of the custodial (or residence) arrangement in another jurisdiction but with different orders as to access and contact.
o 148. Seventhly, just as, depending upon the legislation, conditions may be placed upon a custodial (or residence) parent as to where the child may reside according to its best interests, when it is proposed that residence arrangements change, the very fact of disturbing them (particularly if likely in practice to alter access to, and contact with, the other parent) will present a consideration that must be taken into account in judging whether new arrangements should be approved. If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child. Because the child's access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times.
o 149. Eighthly, although at common law the concept of custody was indivisible, statute has altered this position. Joint custody and guardianship became increasingly common even before recent legislation made shared parental responsibility for a child the modern norm. Yet even now, courts necessarily retain the power to order otherwise. Under the legislation, before it was changed, the determination of whether joint or sole guardianship should be ordered was within the discretion of the court. Departure from the norm of shared parental responsibility is also within the court's discretion
167. The above principles were also discussed by his Honour in some detail in U & U. I have also been referred by Counsel for Ms Beaumond to an excellent discussion of the relevant principles (not only as espoused within U & U but Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343 and Palmer & Hammer (No 2) [2011] FamCAFC 196, Taylor & Barker [2007] Fam CA 1236; (2007) 37 FAM LR 461 and MRR v GR [2010] HCA 4; (2010) 240 CLR 461 and various other authorities) by the decision of the Full Court in Sayer & Radcliffe and Anor [2012] FamCAFC 209. I thus incorporate herein from that discussion portions thereof which more than abundantly sets out those principles, being paragraphs 46 to 51 thereof together with that incorporated and expressed with approval within that judgement from Starr & Duggan [2009] FamCAFC 115 and under the heading: “Approach to Applications involving a Relocation of the Child” (paragraphs 33 to 39 thereof):
o 33. The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.
o 34. The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.
o 35. In McCall & Clark the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.
o 36. The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
o 37. Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
o 38. However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
§ first make findings concerning the relevant s 60CC factors;
§ then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
§ then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
o 39. Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
Relevant Principles
168. While it is apparent that the mother’s primary complaint in the appeal is the Federal Magistrate’s denial of permission to relocate to South East Queensland, it is important to recall that the application before her Honour was that of the father for parenting orders. The consideration of relocation arose later, in the mother’s response to the father’s application, as an order sought by her, and then more urgently when the mother had in fact moved to South East Queensland with the children.
169. It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders (see Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343 at paragraphs 72 to 73, Palmer & Hammer (No 2) [2011] FamCAFC 196 at paragraph 28).
170. A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer & Hammer (No 2) paragraph 76; Morgan & Miles paragraphs 80 to 81). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
171. The provisions of the Act which form that legislative pathway have been reproduced at length by this Court many times (Taylor v Barker [2007] Fam CA 1236; (2007) 37 Fam LR 461, Morgan & Miles (supra), Adams & Randall [2011] FamCAFC 204; (2011) FLC 93-482). It is sufficient for current purposes to identify and summarise those sections contained in Part VII of the Act which govern decisions about children, and consider statements of the High Court and of this Court which guide their application in the context of relocation cases:
o Section 60B – Objects of Part and principles underlying it
o Section 60CA – Child’s best interests paramount consideration in making a parenting order
o Section 60CC – How a court determines what is in a child’s best interests
o Considerations relevant to relocation include:
§ Primary considerations: meaningful relationship with both parents
o Additional considerations:
§ Nature of child’s relationship with parents and other persons
§ Extent to which parent has taken or failed to take opportunity to participate in decision-making, spend time and communicate
§ Likely effect of changes in child’s circumstances including effect on child of any separation from either parent, other child or other person with whom they have been living
§ Practical difficulty and expense of a child spending time and communication with a parent and whether that will substantially affect child’s right to maintain personal relations with both parents on a regular basis
§ Capacity of each parent and any other person to provide for the needs of the child
o Section 61DA – Presumption of equal shared parental responsibility when making parenting orders
o Section 65DAA – Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances (where an order for equal shared parental responsibility has been made, and such time is in the best interests of the child and reasonably practicable)
o Subsection 65DAA (5) – Factors the Court must have regard to in determining reasonable practicability:
§ How far apart parents live
§ Parents’ current and future capacity to implement an arrangement for equal or substantial and significant time
§ Parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing arrangements
§ Impact arrangements would have on the child
§ Such other matters the Court considers relevant.
172. The legislation therefore requires multiple layers of consideration, but does not provide express guidance as to the order in which such matters are to be considered, or what weight is to be attached, other than to commence with the presumption of equal shared parental responsibility and what follows from that decision.
173. The operation of the legislation in relocation cases has been expressly considered by the High Court in MRR v GR [2010] HCA 4 (3 March 2010), an appeal from an order of a Federal Magistrate refusing to allow relocation. In joint reasons for judgment, the Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) summarised the effect of the legislation and concluded that orders for equal or substantial and significant time are to be guided by the practical feasibility of such time, not merely its desirability. Their Honours said:
o 6. Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by “ensuring that [they] have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.
o 7. Section 65D(1) provides that the Court may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. [...] Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
o 8. Sub-section (1) of s 65DAA is headed “Equal time” and provides:
§ “If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
§ (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
§ (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
§ (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”(Emphasis added.)
o Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
§ (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
§ (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
§ (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
o Sub-section (3) explains what is meant by the phrase “substantial and significant time”.
o 9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”,“[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
...
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
Approach to Applications Involving Relocation of A Child
174. The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramouncy principle” found in s.60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.
175. The interplay between the paramouncy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.
176. In McCall & Clarke the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.
177. The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s.60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s.60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s.65DAA, especially s.65DAA(5).
178. Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
179. However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
a. first make findings concerning the relevant s 60CC factors;
b. then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
i.then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s. 65DAA(5) – which may be done by referring back to the earlier s. 60CC findings.
180. Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
181. What is made clear by that discussion and the cases addressed therein is that the legislative pathway must be followed and with a specific focus upon considering each of the proposals that arise.
By reference thereto, it is to be observed that the issue before the Court today are competing applications with respect to [X]’s future parenting arrangements. There is no separate or discrete issue to be determined with respect to whether relocation occurs (or is allowed to continue) or not.
The issue in this case is, as section 60CA compels, what arrangement is in the child’s best interests?
In addressing the dispute I must have regard to and consider the parties’ competing proposals and others which are otherwise clearly available. Those proposals would appear to comprise:
a)[X] continuing to live with her mother in Newcastle and spending time with the father on such basis as may be considered appropriate and being in the child’s best interests and reasonably practicable;
b)Secondly, [X] passing to live with the Applicants in [G] and, thus, spending time with her mother on whatever basis is considered appropriate;
c)The mother returning to live in the [G] area, presumably through compulsion of court order as the mother evinces no desire to do so voluntarily, and, then, what time arrangements would apply as between [X] and the Applicants.
It is also made clear in submissions that the engagement and involvement of the paternal grandmother, as an Applicant, is on the basis of seeking to provide support to her son and on the basis that, if an order were required for [X] to live with the Applicants or either of them in [G], upon the mother’s refusal to return [X], to that area, that the Court would realistically hold some concerns as to the appropriateness of the father to provide fulltime care without or other than in combination with the support of his mother.
In any event, the issue which is, thus, to be determined is the best care arrangement for young [X] having regard to the parties’ respective and competing proposals, including where they would each propose that they would live with [X].
It is also submitted by the Applicants that the Court would not countenance or provide to the mother the benefit of her action, unilateral as would seem clear, in stopping the father’s time with [X] and, thus, that of the father’s extended family nor the mother’s unilateral relocation away from [G] and to Newcastle.
Again, that is not a specific issue for determination by the Court, although it may be relevant in weighing up and determining which of the various competing proposals might find favour on an interim basis.
It is acknowledged and conceded that the interim determination of the proceedings will, in all probability, have some impact upon, at least, the future conduct of the matter and that will certainly be reflected in a consideration of venue at the completion of determination of the substantive issue as to the child’s living arrangements.
The Court’s obligation remains the child’s best interests which interests must be considered paramount and all other interests and concerns and considerations subservient thereto.
The legislative pathway
I am required to commence with the objects and principles set out in section 60B and which I incorporate herein:
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; 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 these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(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 (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
The objects and principles provide that the Court should endeavour to ensure that children have the benefit of both of their parents having a meaningful involvement in a child’s life to the maximum extent consistent with the child’s best interests.
I must also be concerned to ensure that children are protected from physical or psychological harm, that they receive adequate and proper parenting and that parents meet their responsibilities and duties.
The above are all raised as issues on the evidence of the parties.
The objects and principles inform the substantial provisions rather than providing considerations by and of themselves.
Section 60A reminds the Court that the child's best interests are the paramount consideration.
Parental Responsibility
I must then turn to section 61DA and determine whether the presumption of equal shared parental responsibility applies and, if it is found to apply, determine whether it is rebutted.
The presumption does not apply in one of three circumstances.
Pursuant to subsection 2, the presumption does not apply if the Court is satisfied on reasonable grounds that:
a)There has been abuse of a child; or,
b)There has been family violence.
Whilst there is some corroboration of the evidence of the mother as regards reports to the Department of Family and Community Services, I am not in a position to make a finding that would satisfy me on reasonable grounds that there has been abuse or family violence.
That is not to discount the mother's allegations or to suggest that they are not believed. It is simply a reflection of the state of the evidence.
I do not intend to suggest that the Court cannot make findings at interim hearings (see, for instance, paragraph 68 of Goode & Goode). However, I am not satisfied that it would be safe for me to do so in present circumstances.
The third ground arises by reference to subsection 3 which provides that when the Court is making an interim order the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied.
I note, as has been submitted by Counsel for the Applicants, that the evidence in the proceedings is limited and it is far from complete. I also note, as was also submitted, that this is a circumscribed interim hearing in which evidence is not and cannot be tested and the Court must do the best it can having regard to the agreed facts and circumstances or that which is not contested or is irresistibly corroborated.
In that regard I note that the facts and circumstances which are not in dispute are:
a)[X] was born after the relationship between her parents terminated;
b)[X] had spent at least alternate weekend time with her father, and in all probability other members of the paternal family, from the age of about one month and until September 2012 when [X] was about 18 months of age;
c)Corresponding, not necessarily in a causatial fashion but certainly chronologically, with the termination of [X]’s time with her father was a substantial diminution in the father's capacity to provide for himself or [X] he being impacted by his use of drugs and/or alcohol and the deterioration in his mental health leading to attempts at self-harm, threats of self-harm and admissions to psychiatric units. Those facts are entirely non-disputed.
There is not dispute that there has been no time or communication between [X] and her father, or other members of the paternal family, for approximately 12 months since September 2012. There is also no dispute between the parties as to the basis of that termination being the mother's removal of the child and her clear indication to the father that she held concerns for the child in the father's unsupervised care at that time.
There have clearly been attempts, albeit limited and sporadic, to organise time and communication. They have included, on the father's evidence:
a)Half a dozen phone calls;
b)Attendance at Family Dispute Resolution which would appear to have occurred after the mother had relocated, although arrangements for the conference had commenced well prior thereto. That is raised as a basis upon which I would be further critical of the mother; and,
c)Attempts by the paternal grandmother to arrange time over Christmas.
All of those attempts have come to naught.
The relevance of those facts to section 61DA is, in my mind, that it would not be appropriate or safe for me to apply the presumption in these proceedings.
There is, on the basis of the agreement between the parties, significant issue that could potentially give rise to findings under subsection (2) and, further, there is sufficient disagreement with respect to other important factual issues as to make it unsafe for the presumption to be applied.
Accordingly, I do not propose to apply the presumption of equal shared parental responsibility and propose in due course to make an order, pending further order, pursuant to section 61C.
That will, to a large extent have the effect, on a de facto basis, of an order for sole parental responsibility in the mother's favour as, clearly, [X] will be in her care for the vast preponderance of time. That also has the effect, however, that I am not then obliged to consider equal or substantial and significant time pursuant to section 65DAA.
Lest I am wrong with respect to the above I propose to consider all time arrangements at large as part of the consideration of section 60CC and, through section 60CC(3)(m), the provisions of section 65DAA(5).
Section 60CC
In turning to section 60CC I must commence with the primary considerations, being:
a)The benefit to the child of a meaningful relationship with both parents; and,
b)The need to protect the child from physical or psychological harm.
In this case the mother would clearly advocate, although the basis is not entirely and abundantly clear from her material, that there would be an unacceptable risk of harm to the child, of a physical or psychological nature, if unsupervised time occurred.
I can only infer that the mother advances that position on the basis that she proposes nothing but supervised time. It would be counterintuitive to propose such an arrangement absent such a contention.
In dealing with unacceptable risk, I am conscious of the Full Court's decision in Johnson & Page. I am satisfied in this case, and based upon the evidence presently available, that there would be an unacceptable risk on two bases in the event that unsupervised time were to occur between [X] and her father. That is not to suggest that I do not propose to consider all of the available options, including the Applicants' proposal for [X] to live with them. However, it should be clear from that finding and satisfaction with respect thereto that the proposal cannot and will not find favour.
The bases upon which I am satisfied that there would be an unacceptable risk are:
a)There is such a paucity of evidence regarding the father's present drug and/or alcohol use and/or mental health to allow, permit or countenance unsupervised time. The father makes some degree of concession regarding those difficulties and suggests that they are historical. Certainly, paragraphs 11, 12 and 13 of his Affidavit suggest as much. However, the father has had an involuntary admission as recently as May 2013, following what was either, based upon his reportage to the Family Consultant, threats of self-harm or attempts at self-harm.
b)Secondly, by reference to decisions such as the Full Court's in Green & Graham, I am satisfied that I must be conscious of the impact upon the mother's capacity to parent the child and, indeed, the mother's functioning, of her concerns as have arisen from her knowledge of those issues and allegations. The mother, to the extent that she has parented this child primarily - and I use that term as a reference to chronology rather than any psychological significance or term of art - requires some support and reassurance regarding her safety and that of the child.
The matters that are alluded to in the evidence, but as to which no significant detail is provided, (e.g. no material is produced to the Court on subpoena or otherwise and no report is provided by any treating psychiatrist or psychologist or any other person), would give me some real concern that there is more underlying the issues to which the father refers, involving as they do at least three presentations to and admissions to hospital as well as referral to and engagement with the Police, and potentially the Department of Family and Community Services, than would first meet the eye.
Thus I am satisfied that there is in play a need to protect the child from physical or psychological harm.
I am also conscious of the comments of the Full Court in Green & Graham. Not only is there some reassurance and protection provided (either to the child's interests or the mother's concern) by supervision but its provision will allow some assistance to the father in engaging his relationship with the child. This will include through objective supervision of that time and the keeping of accurate notes.
Objective records of the father’s time may allow the parties, consistent with the principles set out in section 69ZN, to ultimately begin to address the distrustful relationship opined by the family consultant and to develop cooperative parenting strategies. I have no great confidence in that regard, however, it is a possible outcome.
I turn now to the additional considerations:
Views
The child is two and a half. Neither party suggests that she has expressed any view in support of any of the various proposals and thus the factor is not particularly relevant. Even if such evidence were before the Court it would be far from dispositive.
Nature of the child's relationship with each parent and other persons
Clearly, [X] has been in the primary (chronological) care of her mother since birth.
There is no suggestion of concern raised as to the mother's care of the child save as regards her alleged deficient attitude towards the child's relationship with the father and paternal family. There is certainly no suggestion that the child has at any time been subjected to abuse, neglect or family violence by the mother or whilst in her care.
As is opined by the Family Consultant, if the mother is ultimately able to establish her allegations she would, indeed, be found to have acted protectively through the steps that she has taken, both in terminating the relationship prior to the birth of the child and in terminating the time arrangement in September 2012. However, they are matters that will await final hearing.
The child's relationship with the mother is not impugned.
The child's relationship with the father is impugned by the Respondent. While she does not suggest any specific evidence with respect to the child's relationship with the father or any problems therewith prior to September 2012, (indeed each party is entirely silent on that issue), it would appear clear, as the Family Consultant has highlighted, that for now nearly half of this child's life she has not had any time or communication with the father or paternal family.
The family consultant has opined that the child would need "a safe and supportive environment in which to reconnect with the father" which may involve supervised time if deemed appropriate.
As I have already made clear, I am satisfied that it would be appropriate, for a variety of reasons as already addressed and as to be elaborated upon, that supervision occur.
Thus the nature of the child's relationship balances in favour of the Respondent and her proposals.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spend time or communicate with the child
Whilst it is asserted that there has been no significant delay on the father's part in commencing these proceedings, at least following his becoming aware of the mother's relocation to the Newcastle area, there has been a significant delay.
One could infer that part of the basis for delay are the difficulties and demons with which the father was struggling in the early part of 2013 and latter part of 2012. However, whatever the bases, delay there has been.
It has been some 10 months from the termination of any time or communication between the child and the father and the commencement of proceedings by him.
Whilst it may well be suggested, as is inferred from his evidence, that there has been significant delay in an application for Legal Aid funding being considered and approved, that does not explain why the father has not taken action himself in filing an Application in a Local Court or this Court seeking orders on his own behalf, as so many litigants do.
In any event, I do not propose to take that to the extent of a criticism of the father for failing to participate in decision-making or time with the child as clearly his efforts would have come to naught as the efforts undertaken by him in contacting the mother, if I accept that this has occurred, have similarly come to naught.
The extent to which a parent has fulfilled or failed to fulfil their obligation to maintain the child
The evidence is silent on that issue.
The likely effect of change, including separation from either parent or any other child or person
Inherent in the proposals of the parties respectively is the potential for separation from either parent.
The mother proposes that [X] continue to live with her and her partner and, for the times that he is present, her partner's elder child.
The father proposes that [X] pass to live with him and his mother or, if the mother returns to [G] with [X], that she stay living with her mother.
There are difficulties with all of the proposals.
The difficulty with the mother's proposal is that the child will clearly be separated from the father. She has been separated from him now for 12 months. She has lived all of her life with her mother and has never had the lived experience of being with both of her parents in the same household, they having separated prior to her birth.
The difficulties with the father's proposals, however, are more abundant. If the child were to leave the mother's care and to live with the father and his mother that is something which this child has never experienced. The father's evidence does not make clear whether the time that he was spending with [X] up to and until September 2102 occurred at the home of his parents, although in all probability it did not.
That is certainly clear from the evidence of the paternal grandmother who suggests that it is only after the father's first admission to hospital, which occurred after the cessation of time, that he came to live with them.
Accordingly, that proposed by the Applicants’ will be an arrangement with which this child is entirely unfamiliar, an arrangement which this child has never experienced, at least on a full-time basis, and an arrangement that will effect a separation between this child and her mother, the person whom the Family Consultant opines is in all probability the child's primary attachment figure.
I am not satisfied that could be in the child's best interests.
As regards the proposal that the mother and [X] return to [G], that is an issue that, again, must be balanced against the separation of the mother and her partner, the separation of [X] and the mother's partner, a relationship which is suggested on the evidence of the mother and her partner to have developed and to be of some significance for this child, as well as effecting a substantial destabilising of the mother's present arrangements.
There is no evidence to suggest that the mother has any arrangement to which she could return, although clearly and in all probability she could live with her mother in the vicinity of [G]. However, that must be balanced against the matters which are spoken to in the case law referred to above, including Kirby J’s comments in AMS & AIF. Whilst the child's best interests are the paramount consideration they are not necessarily the sole consideration. Other considerations have relevance, they are simply subservient.
The mother has a legitimate interest and desire to remain where she is, in the relationship which she suggests is of some real significance to her and, for that matter, [X]. She and her partner suggest that marriage has been discussed and is proposed at an indeterminate time in the future.
Whilst the Applicants’ say that the mother’s present relationship is an unstable and untested arrangement, the mother and Mr M having only co-habited now for about nine weeks, it is a relationship which each deposes a commitment to and some security in. In those circumstances I am satisfied that the separation of the mother and [X] from that arrangement and those persons would be problematic and not in [X]’s best interests.
Practical difficulty and expense
I will deal with this as part of section 65DAA(5).
Capacity of each of the parents to provide for the child
There is no suggestion in the case of the Applicants’ that the mother has any impediment to her capacity to provide for [X], save the suggested deficiency in her attitude towards the importance of the child's relationship with the father. However, if one were to take the allegations raised by the mother at face value, and to a large extent they are corroborated by the father's own admissions, she has good basis for her concerns. Accordingly, I cannot be critical of her at this point although that remains an issue at large to be determined at final hearing.
It is also to be remembered, as part of other facts and circumstances incorporated within subsection (m), that I would be entitled to have regard to the factor which is no longer is contained within subsection (c) of section 60CC(2), being the extent to which each parent has facilitated and encouraged the other's relationship with the child.
Whilst the mother might, on the face of the evidence, be criticised for having unilaterally terminated the child's relationship with the father in September 2012, it is clear that:
a)The father on his own admission was in a state such that if the mother had observed it or was fully aware of it, and particularly based upon her evidence as to her knowledge of past drug use and the like, that her actions were entirely appropriate.
b)To the extent that the previous subsection (c) has been referred to as the “friendly parent provision”, it is and was nothing of the sort. It is an assessment in the context and circumstances of each individual case of the appropriateness of the attitude demonstrated by each party. On the basis of the mother's evidence and the concessions by the father I am satisfied that it would be irresistible that her actions in September 2012 were entirely appropriate.
c)The mother's capacity to provide for the child is abundant and absent criticism. Indeed, even if the child were to pass, as the father proposes, to live with he and his mother, it is proposed that the mother would have ongoing overnight time with the child. Thus it must be accepted that she has capacity to provide for the child without assistance or supervision.
d)The mother's capacity to provide for the child is enhanced by her present arrangements. She has the support and assistance of a loving and, on the evidence of both her and her partner, committed relationship and that is something that, since [X]'s birth, the mother has not experienced. She has, on her evidence and largely corroborated through the concessions of the father, been the subject of family violence and verbal abuse and also the father's difficulties with mental health and drug and/or alcohol use.
The above difficulties befalling the father are conceded, at least to a limited extent. They are matters which would have created great stress and distress for the mother and of which she has sought respite from in present arrangements.
It is also to be noted as regards capacity that the father's evidence is that he had, in August or September 2012, consented to the mother's removal of [X] to Newcastle. That consent may have been begrudging but it was forthcoming. It is suggested, and I accept it as so, that certainly by January 2013 the father had made known through his Attorney’s, although the mother disputes she had received a letter, that he no longer consented.
However, the father's consent to the relocation is not the germane issue. The germane issue is whether the child's best interests are met by the proposal and the arrangements proposed. I am satisfied they are.
I am satisfied that the mother's capacity to meet [X]'s needs is superior to that of the father and, further, that the mother's capacity to meet [X]'s needs is enhanced by the present arrangement and would be detracted from by any change thereto, including a Court-mandated return to the [G] area.
Maturity, sex, lifestyle and background to the child
This little girl is very little. She is two and a half years of age.
During her short life she is suggested to have been exposed to not less than two serious incidents of domestic violence.
She is suggested to have witnessed and been in the care of the father during difficulties with respect to his mental health and drug and alcohol use. Whilst that is not conceded, it is alleged.
This little girl requires safety, consistency and stability. I am satisfied that would best be met and facilitated through the mother's proposal for her to continue to reside in the Newcastle area with her partner.
Aboriginality
It is suggested that the child is from an Aboriginal or Torres Strait Islander basis.
Mr Kitson identifies both himself and his mother as Aboriginal or Torres Strait Islander people.
The mother is silent as to that issue, as is the Initiating Application being the means by which such identification is made known to the Court.
Beyond the mere identification of that issue the father has not led any evidence at all. Thus the Court is not in a position to assess, as the Court is obliged to do pursuant to the legislation, the extent to which such matters might be relevant or impacted.
Further evidence will need to be produced at some point in the future to speak to and address that issue and to ensure that this child's Aboriginality is appropriately addressed through arrangements that are ultimately put into place on a final and long-term basis.
So much is made clear by section 61F of the legislation and thus the parties have been deficient in the evidence that they had led. That will need to be addressed prior to final hearing.
There is nothing to suggest that the child's right to enjoy her Aboriginal or Torres Strait Islander culture, including with others with whom she shares that culture, has been other than supported by the mother. To the extent that she has terminated time in September 2012, it is not suggested that the child’s aboriginality had any part in that decision.
The attitude to the child and responsibilities of parenthood
The mother is criticised and castigated for having unilaterally acted, firstly, in suspending time and then, secondly, removing the child so as to create significant practical difficulty.
The father, however, can also be criticised, although it is not specifically addressed in submissions, for his attitude. If it is suggested that the father has been drug and alcohol affected or has perpetrated family violence, whether towards this mother or the mother of his younger child, in [X]'s presence, that demonstrates a deplorable attitude. However, the evidence is so deficient with respect to both issues that I am not prepared to make such criticism.
To the extent that the criticism is made of the mother, however, I am satisfied that her attitude should not be judged as suggested. The father provided his initial consent to the move. He may well have withdrawn it but he clearly provided it at first, such is his own evidence.
The mother's attitude as demonstrated by her terminating time, if the allegations that she raises, (which it is to be remembered are to some extent conceded by the father), is entirely appropriate and I would expect nothing less of a parent acting protectively and in child-focused fashion.
The mother's relocation I am also satisfied, whilst it may well have not regarded the father's relationship with the child and the practical and logistical consequences of her move upon same with priority, most assuredly focused upon the need for herself to be supported in a loving and committed relationship and thus [X] receiving the benefit thereof.
Family violence
This is raised as a significant issue although the evidence is somewhat defective.
On the basis that allegations are raised it is inexcusable that a Form 4 has not been filed as required by the legislation. It is, in fact, the starting point for the Court's inquiry and for the actions which the Court is obliged to undertake pursuant to section 67ZBB.
Section 67ZB requires the filing of a notice in such circumstances. It is mandatory. Subsection 67ZBA(2) provides that an “interested person”, being the person raising the allegation, must (emphasis added) file a notice in the prescribed form.
The filing of that notice triggers the requirements to consider:
a)The commissioning of appropriate evidence
b)The making of orders, including at the Court's own volition, for the protection of the child or other persons; and,
c)The making of such other orders as are considered appropriate and including orders as to expedition.
It has become common practice that a notice is not filed when it should and it is filed when it should not be. Accordingly, and as the evidence within the affidavit at least presents the issue, and thankfully through the Court's own resources, the Child Dispute Conference Memorandum and response to s.248 request, the issue is clearly before the Court.
The evidence of family violence is far from substantial. There is no concession by the father and thus, beyond that contained within the Family History Report suggesting regular Departmental involvement, on at least eight occasions, regarding such allegations, there is little that the Court can place weight upon.
To the extent that the Department has clearly had some involvement, I am concerned that I cannot dismiss those allegations, not only with respect to that which the mother leads in relation to her own experience of the father but that which is suggested with respect to the father's relationship with his former partner. Thus, the Court will take active steps to ensure that material previously requested of the Police, the primary source document for such allegations, is produced pursuant to the order already made.
Family violence orders
There are none.
Whether it is preferable to make the order that will least likely lead to the institution of future proceedings
These being interim proceedings, it is difficult to meet that end, at least to the extent of concluding the matter. However, the best I can do is make orders which will, as far as possible:
a)Guide the matter, consistent with the Court's obligations pursuant to section 67ZBB;
b)Ensure the commissioning of appropriate evidence, including through the appointment of an Independent Children's Lawyer;
c)Ordering appropriate family counselling services as recommended by the Family Consultant having regard to section 11(e), and as may further resource the parties and assist them in resolution; and
d)Make orders which are, as far as possible, sustainable and practical.
Reasonable Practicality
I now turn to section 65DAA(5). In addressing those matters:
a)The parties live, and as a consequence of the orders I propose to make will continue to live, some eight hours apart. Both parties are impecunious. Neither is in paid employment. Thus each is dependent upon the assistance and largesse of others to fund travel.
b)The parents' current and future capacity to implement an arrangement. For the last 12 months the parties have not been able to implement any arrangement for time or communication. However, there are any number of bases upon which that has come to pass. I would propose that time will occur as frequently as can be accommodated and with both parties involved in some degree of travel. However, I propose to make orders that will see time occur on a supervised basis and I will address that shortly.
c)The parents' current and future capacity to communicate and resolve difficulties would appear highly problematic. The best I can do to address that is to make orders pursuant to Part II of the Act.
d)The impact of the arrangement on the child. I am satisfied there would be an entirely negative impact upon the child of either:
i)Removal from the mother's care; or,
ii)Removal of the child and the mother from the present arrangement in which they have support, nurture and comfort.
Primary Placement
I am satisfied that of the three proposals identified by the parties for the future care arrangements for this child, particularly her primary residence, that she should continue to live with her mother in her present location. Thus, I do not propose to accede the application requiring and compelling [X]'s return and, on the mother's concession, including with her mother, to the [G] area.
Father’s time with [X]
That then leaves the issue of the child’s time with the father.
The mother’s proposal is that time occur and be supervised by [X]’s grandmother. There are a number of difficulties with that proposal, not the least of which is that until that information was elicited during submissions the identity of the maternal grandmother was not known. She is not on affidavit; she has not indicated her preparedness to provide supervision or her attitude towards any constraints thereupon. The Court is not in a position to assess the extent to which she would be impartial and non-partisan. Thus I reject her as a proposed supervisor.
In the father’s case and whilst the Family Consultant has reported that the father indicated that “if required by the Court he is willing to accept supervised time in the interim,” he does not propose that his time be supervised. Sensibly, and I accept on the sage and appropriate advice of his Counsel, he concedes that over-night time would at this point – and in light of the absence of any relationship for some 12 months – be inappropriate.
I am satisfied that supervision is required, however. The father would propose, inferentially and through the joinder as an Applicant of his mother, that time be supervised, monitored or occur in the presence of his mother.
I have no basis upon which to criticise his mother. The Respondent does not criticise the paternal grandmother, save to suggest that she has been intimidatory and abusive in the past although there is no particularisation of that allegation and thus it is difficult to make out what is meant.
However, going by reference to the Full Court’s decision in Green & Graham I am satisfied that the more appropriate course is for time to occur through a supervised contact service. That way neither party can suggest that they have any lack of confidence in either the ability of the supervisor or their capacity to objectively record that which occurs and report it. I am also concerned in that regard that there would be an evidentiary difficulty of an Applicant – albeit a joint Applicant – supervising the time spent by the other Applicant.
There are also logistical problems and there is the very real issue, as raised by the Family Consultant, of the extent to which the father might be a relative stranger to the child at this point as also is the paternal grandmother. That is not to suggest that staff at a supervised contact centre are any more familiar with this child than the father or paternal grandmother. However, the staff do provided a degree of objectivity which will provide protection to the child, protection to the father (against further allegation), an objective basis to assess the development of the father and paternal grandmother’s relationship with the child, as I propose to make an order in favour of the Applicants plural, and will provide the type of reassurance to the mother that the Full Court spoke of in Green & Graham.
The parties have not provided any evidence with respect to supervised contact services, however, it is clear and apparent from the publicly available Family Relationships website that contact service exist in the [omitted] region at [B] and in the [W] region.
I propose to make orders that will alternate between the two and with the purpose of ensuring both parties are obliged to travel, not purely for the purpose of equalising inconvenience but to allow the opportunity of maximising the time that might occur and the experience of this child’s exposure to the Applicants.
Accordingly and for the above reasons I make the following orders.
I certify that the preceding two hundred and two (202) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 10 December 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Procedural Fairness
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