Lai and Zhong

[2018] FCCA 2215

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAI & ZHONG [2018] FCCA 2215

Catchwords:
FAMILY LAW – Parenting – interim hearing – unilateral relocation interstate.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 61DA, 64B, 65AA, 65D, 65F

Cases cited:

Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346
Marvel & Marvel (2010) 240 FLR 367; [2010] FamCAFC 101
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

Morgan & Miles (2007) 312 FLR 114; [2007] FamCA 1230

U & U (2002) 211 CLR 238; [2002] HCA 36

Applicant: MR LAI

Respondent: MS ZHONG

File Number: SYC 2328 of 2018

Judgment of: Judge B Smith

Hearing date: 2 July 2018

Date of Last Submission: 2 July 2018

Delivered at: Sydney

Delivered on: 17 July 2018

REPRESENTATION

Counsel for the Applicant: Mr Stewart

Solicitors for the Applicant: Williams Barristers & Solicitors

Counsel for the Respondent: Mr Lambert

Solicitors for the Respondent: Ausino Lawyers

THE COURT ORDERS THAT:

1. The application in a case for interim orders filed on 24 April 2018 is dismissed with each party to pay their own costs.

2. The matter be listed for Final Hearing with an estimate of 2 days on 10:00am on 2 October 2018 at Sydney before His Honour Judge B. Smith.

3. Both the applicant father, MR LAI born 1985 and the respondent mother, MS ZHONG born 1988, file and serve any Amended documents, including one consolidated Affidavit in support of the orders sought by them, together with any other witness’s affidavits, and serve or give notice of any subpoenaed documents, upon which they intend to rely by no later than 4:00pm on 11 September 2018.

4. Neither party may rely on any documents filed or served after this date without leave of the Court.

5. Each party is to file and serve a Case Outline document by no later than 4:00pm on 24 September 2018, setting out:

   (a)a list of documents to be read in their case;

   (b)a precise Minute of Orders Sought;

   (c)a list of objections to evidence and the basis for such objection;

   (d)a brief summary of argument touching upon the matters set out s.60CC of the Family Law Act 1975, with reference to the relevant evidence relied upon;

6. Each party is to file and serve a Tender bundle by no later 4:00pm on 27 September 2018.

7. Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the Children, [Y] born 2016 and [X] born 2014, and the Legal Aid Commission of New South Wales is requested to provide such representation and is requested to expedite this appointment.

8. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

9. Leave be granted to the parties to issue up to 10 subpoenas each.

10. Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they consider relevant to the issues before the Court.

11. Leave be granted to the parties’ legal representatives and to the Independent Children’s Lawyer to inspect and photocopy any documents produced on subpoena in these proceedings. 

12. As the matter is expedited leave be granted to any party to relist the matter on short notice by communication with all other parties and Chambers in appropriate circumstances.

13. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of an expedited family report, such report to be released as soon as possible.

14. The Family Report to deal with the following matters:

    (a)the benefit to the child of a meaningful relationship with each parent.

    (b)the capacity of each parent to protect the child from harm.

    (c)the impact on the child and on each parent’s capacity if the allegations they each make against each other of poor behaviour and family violence are found to be correct by the Court. 

    (d)the capacity of each parent to promote the psychological, emotional and educational well-being of the child. 

    (e)the insight of each parent into the children’s needs.

    (f)the attitude of each parent to the responsibilities of parenthood.

    (g)the impact on the children of a change in their parenting arrangements.

    (h)any views expressed by the said child/ren and any factors (such as the said child/ren’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

    (i)any other matters that the Family Consultant considers important to the welfare or best interests of said children.

15. The parties send copies of all of their court documents to the family report writer within 7 days of being requested to do so by the family report writer.

16. The Family Consultant has leave to view all material produced under subpoena and released for inspection.

17. The Family Consultant has leave to view all material filed in the proceedings before or after the release of the family report.

18. The Mother to do all that is necessary to make the Children available for WE CHAT with the Father on 3 occasions per week, being Tuesday, Thursday and Saturday of each week at 6:30pm for no longer than 60mins until further order.

19. The Father may travel to Sydney on 2 occasions between the date of these orders and the final hearing, 2 October 2018, to spend time with the Children from 5pm Friday to 6pm Sunday on dates to be agreed between the parties and the Mother will do all things necessary to facilitate that contact occurring.

AND THE COURT NOTES THAT:

A.All legal representatives and the parties attended via telephone.

B.A Court funded family report may not be able to be provided by the Hearing date.  The Hearing will proceed whether such a report is available or not. 

C.The parties have leave to agree to privately jointly retain and pay for a family consultant to prepare a family report in order to ensure they can obtain such a report prior to the Hearing.  In that case orders 14 to 18 above will apply to that privately retained family consultant, and the parties are to notify the Dispute Resolution Coordinator of the Federal Circuit Court of Australia as soon as possible after such a decision is made.

D.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2328 of 2018

MR LAI

Applicant

And

MS ZHONG

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application in a case filed 24 April 2018 by Mr Lai (“the father”) effectively for the return of his two children from Sydney to their original place of residence in Adelaide.  The application is opposed.

2. The application in a case is brought in the context of an initiating application in which the mother of the children, Ms Zhong (“the mother”), seeks orders that, in effect, she have the children live with her in Sydney. 

3. I will now go through the background of the matter starting with the parties and other relevant people.

Parties and people

1. The mother was born on 1988 and is now 29 years of age.  She is a permanent resident of Australia originally from China. 

2. The father was born on 1985 and is now 32 years of age. 

3. The first child [X], known as [X], a girl, was born on 2014 and is now three years and nine months of age.  [X] is an Australian citizen. 

4. The second child, [Y], a boy, was born on 2016 and is now one year and nine months old.  [Y] is also an Australian citizen.

5. The other significant people who are involved in the overall factual matrix of this case include:

   a)On the mother’s side; her cousin, Ms C, and her uncle and aunt.  That family, including additional children of that family, live in Sydney and are the mother’s connection to Sydney.  The mother’s parents, who I understand live in China, have also been involved but the mother’s mother (“the maternal grandmother”) is now in Australia to assist the mother. 

   b)On the father’s side; his family, including his mother and father and a brother, who all reside in Adelaide.  The father is in this way also connected to Adelaide.

Background to the matter

1. The mother was originally from China.  She was a student in Australia for a period of time from 2007.  Some time in 2012, the mother’s family and the father’s family, who were known to each other in China, considered the question of a marriage between the father and the mother. 

2. It was arranged for the mother and father to meet in Sydney in 2012 and, after a short courtship, they were married on 2012.  The marriage was in Sydney.

3. On 2012, a few days after the marriage, the mother and the father moved to Adelaide, where the father was from, where the father’s family reside, and where he has employment. 

4. The relatively short period of time during which the parties knew each other prior to marriage is relevant to what follows.

5. The mother says that she soon found out that the father had a short temper and was very controlling, including with money.  She says, for example, that after they returned to China to celebrate their wedding with their extended families in China she had an ectopic pregnancy which had to be treated in China.  The mother says that on her return to Adelaide she was required to commence work at a (employer omitted), including doing physical work, while not yet fully recovered.

6. I note that the father denies that the mother was required to return to work before she was fit to do so. 

7. So there is no mistake about what is to follow as I record the various allegations, the parties are in dispute as to whether or not there has been family violence and/or as to its nature and extent, and the father does not admit that he has been controlling or abusive. 

8. I will discuss later the issues that arise for a court when considering untested and contrary versions of events on an interim application.

9. The mother and the father continued to live in Adelaide and on 2014 [X] was born.

10. In about September of 2015 the mother borrowed $100,000 to purchase a property at Property A, Adelaide, South Australia, which I will refer to as “the family home”.  It was apparently purchased in the mother’s sole name.  I was informed that the property cost $700,000 which suggests that there is a very significant mortgage.  I am uncertain whether it is a joint mortgage.

11. The mother alleges that across the period of the marriage in 2014 and 2015, from the start of the marriage, there was escalating verbal, emotional and financial abuse.  I note again that this is generally denied by the father. 

12. There is also a contest as to whether the tensions in the marriage were primarily due to religious, or what might be more broadly called cultural, differences.  Although this was an arranged marriage, the mother says that she had what one might describe as western liberal views about marriage and the relative roles of partners within such a marriage, whereas she says the father held more traditional views, including that a wife should be subservient to her husband.

13. This, is not something that can be decided here, and in any event it seems to me that the issue is the factual nature of the relationship and what has occurred rather than an inquiry into whether or not any such arguments might have been caused by religious or cultural differences, or by the usual stressors and strains that come upon young families in the presence of financial stresses, trying to buy a house and having two very young children.

14. The mother alleges that on 15 September 2016 there was physical abuse by the father, including the mother being slapped on the face and having her hair grabbed, and she alleges that this occurred in front of her daughter, [X]. 

15. The mother subsequently, and she says consequently, fled to Sydney and took up residence with her cousin, Ms C, and her aunt and uncle.  The mother says that in the face of family violence she came to Sydney, where she had a support network, because in Adelaide she was isolated, had no support network apart from that of the father, and that she did not think that the father’s family were supportive of her position as opposed to his.

16. In support of that allegation the mother annexed to her second affidavit a report from Ms L, a social worker at the Hospital, which noted the self-report of domestic violence.  That report is dated 21 September 2016.  It states that the mother:

    ...has advised she and her two year old daughter have had to leave her husband and home in Adelaide six days ago, due to domestic violence.

17. I note that that document was prepared in the context of it being a supporting document for an urgent visitor visa application for the maternal grandmother so that she could assist the mother in respect of the then forthcoming birth of the mother’s second child. 

18. The matter was reported to police (annexure B of the mother’s second affidavit).  The matter was not pursued because the mother says that she did not want it to damage their relationship and, in effect, that she forgave her husband and wished to continue in the marriage.

19. I note that the father says that there was a verbal dispute about a religious gift which the father threw in the bin causing the mother to become angry and flee.  There is obviously a significant difference between the two versions of events.  I am not in a position to adjudicate the question of which of those occurred on an interim application. 

20. On the mother’s version of events it was physical violence and clear family violence.  On the father’s version of events I do not think it rises as high as physical violence, but rather was a verbal dispute in which a religious object was thrown into a bin. 

21. Nevertheless, it appears that the father came to Sydney to support the mother and on 2016 [Y] was born.  After [Y]’s birth the father and the mother returned with both children to Adelaide. 

22. On 29 September 2017, almost exactly one year later, the mother alleges that there was a further physical assault on her by the father in front of both children.  The mother accepts that she slapped the father in the face but states that that was purely defensive in the face of his physical onslaught. 

23. The father prepared a letter, which has been translated and that translation placed before the Court as annexure A to the mother’s first affidavit.  Although not dated, it was put in the mother’s case on the basis that it arose after the events of 29 September 2017 and no other date has been suggested.  It states in part that:

    I...have had clashes with my Wife ... due to difference (sic) in religious belief which has affected the peace and harmony of the family.  I ... thereby make the following commitment to my Wife ...

24. It refers to not interfering with the wife’s decision to take the children to church and continues:

    2.  From now on, I shall not assault my Wife ... In the event of breaking this commitment, I ... promise to relinquish my right to custody of my Daughter ... and my Son ... and let my Wife have the right to custody.

25. Now there was some argument about what this means, and I note that translations are often difficult, that the word “assault” on one view in its technical meaning refers to creating fear, so it would not include a physical assault, but in the more broader use in English is often more broadly taken to include both a physical and verbal assault. 

26. This evidence is significant because, while it does speak to the father having an insight into the unacceptable nature of his actions and a willingness to formally admit his wrongdoing and undertake not to act this way in respect of his wife again, it is nevertheless, for the purposes of these proceedings, an admission which this Court accepts as establishing some level of family violence by the father against the mother.  However based on this translation alone, I cannot comfortably say whether what has occurred has been solely verbal or whether, as alleged by the mother, it has extended into physical violence.

27. I also note, particularly in light of the father’s version of events (to be discussed later), that an admission of this kind does not exclude the possibility, as raised by the father, that the family violence is mutual.  Many cases of mutual verbal and physical attacks are recorded in the literature and before this Court, and it is also often the case that in mutual attacks, whilst the motives may be similar, it is usually the mother who is physically injured.  Nevertheless, it is an admission which must be given some considerable weight.

28. On 5 January 2018 there was an event in which the mother alleges the father assaulted her by poking her, or poking her in the forehead or poking at her forehead, with his finger, and she says she lifted a leg to kick him which caused the father to go crazy and punch her multiple times in the leg.  She alleges he threatened to beat her to death that night.  This was said to have happened in the presence of a female boarder, who I understand is called Ms H, who the mother and father had staying at the house to help pay the mortgage.  It is unclear how many different boarders the mother and father had or at what times or how long Ms H may have been there, but I understand that she was a boarder who was there at the time of this event.

29. The police were called and the father was charged with assault, and the police also subsequently made an application for an apprehended violence order in the South Australian courts.  Again, this version of events is contested.  The father says that during a verbal dispute the mother kicked him twice, once to the thigh and once in the stomach, and then kicked him a third time with great force to his genital region.  The father says that he, unwisely, then punched the mother two or three times in the leg to get her to stop.  The father says that this was the first and only time he had ever “physically” hurt the mother.

30. I emphasise the word “physically” noting his explanation of the written admission referred to above.  The father denies all but this one incident of family violence, and says that this was an incident in which both parties were violent towards each other. 

31. As a consequence of this event the parties separated sometime between 5 and 9 January 2018.

32. Up to this point in time it appears that there was a traditional allocation of duties between the mother and the father, with the mother working until she had her first child, and then the mother being the primary carer for the family’s two young children with the father working to financially support the family and spending such time with his children and assisting in family chores as he could between work commitments.  Again, there seems to be some dispute as to the extent to which the father assisted in the household and spent time with his children, but that is not an issue I can resolve, or would seek to resolve, now.

33. Post-separation, ad hoc time was arranged between the father and the children.  There was an issue about the fact that the boarder was apparently instructed to move out of the house, although it is not clear precisely by whom. The father said it was not him. There is a suggestion it was the father’s brother or someone else associated with the father.  That is, again, not something that can be determined.

34. On about 28 January 2018 the mother delivered the children to a park to spend time with the father.  On 30 January 2018 the family were apparently to travel to China but the mother did not wish to go and instead the father went by himself where he apparently stayed for up to six weeks. 

1. At some time in February 2018 the father through his solicitors placed a caveat on the family home, suggesting that the relationship was one in which trust had become a scarce resource.

2. On 15 March 2018 the AVO was issued by the South Australian courts. 

3. On 21 March 2018 the father’s solicitors wrote to the mother about spending time with the children and the mother agreed to time on Easter Saturday and Easter Monday, and the children were apparently delivered to the father by a person unknown and assumed by him to be the mother’s friend.

4. At some stage, presumably in April 2018 – it is not entirely clear from the mother’s material and the father does not know – the mother moved to Sydney with the children without informing the father. 

5. I note that there were no parenting orders in place so that the unilateral decision to move did not breach any order of the Court and that, of course, in those circumstances each parent had both joint and several parental duties and responsibilities. 

6. However, it is most unfortunate that the mother chose to remove the children from the family home and from Adelaide without informing the father or his solicitors of what she was planning to do.  One suspects that that was intentional, but that is not a matter that is relevant on this present application.

7. The mother sought medical treatment and was assessed as having “some acute Post-traumatic stress type symptoms” by Ms S, a clinical psychologist, on referral from a general practitioner.  Ms S’s report is annexure C to the mother’s first affidavit.

8. On 13 April 2018 the mother filed an initiating application which was served on the father.  It was apparently the first notice he had that the mother had left the jurisdiction of South Australia.

9. The initiating application filed on 13 April 2018 does not seek interim orders but only seeks final orders which form part of the record and should be read with these reasons.

10. In effect, the final orders sought by the mother are that the father and mother have equal shared parental responsibility for the major long-term issues relating to the children.  I note that that is something which the father also agrees is appropriate, and is an order that has therefore already been made on an interim-basis and which I will not vary.  It seems to me to be entirely appropriate.

11. The next order that the mother seeks, which is in fact order 1 sought, is:

    … that the children ... live with the mother in the State of New South Wales, except time they are to live or spend time with the father.

12. This is the heart of the issue between the parties. 

This application

1. The application in a case filed on 24 April 2018 by the father in response seeks the following orders:

   1. That an early date be fixed for the hearing of this application pursuant to Rule 5.03.

   2. That pursuant to Rule 8.01 of the Federal Circuit Court Rules the matter be transferred to the Adelaide Registry.

   3. That the mother return the children [[X]] born 2014 and [[Y]] born 2016 to live in the metropolitan area of Adelaide.

2. In effect, these orders seek the contrary of the mother’s first order.  It is unclear if Order 2 is sought as, effectively, an extension of Order 3, or whether the father seeks that the matter be transferred to the Adelaide Registry even if the mother and children are to stay in Sydney on an interim basis.  I note that the father’s position as set out in his case outline is that the children should continue to live with the mother, and it is not suggested that the children should be returned to Adelaide to live with him.  That seems to me to be a very sensible approach, given the very young ages of the children and the fact that the mother has been the primary carer, which is not to say that the father’s role in providing financial support for his family is in any way of less value to the children or less valuable to the family unit.  Nevertheless, the mother has been the primary carer and, in particular with a child who is not yet two years old and even for a child who is not yet four, one would imagine that it would be very difficult for them to be suddenly removed from their mother’s care. 

3. That is not to say that the Court does not accept that there would be a strong, if not the primary but a very strong secondary, attachment between the children and their father, with whom they lived, nor that there would not be issues for the children in having been removed from contact with the father, and that is something that will be considered further in a moment.

Legal principles

1. I will just briefly now discuss some of the legal principles, or the legal principles, that bind this Court on this interim application.  This is an interim application for parenting orders, effectively by the father but I note that, although the initiating application was not before the Court, the mother does by her resistance to the father’s application and her response in effect seek the orders now that she is seeking on a final basis. 

2. Parenting orders are defined in Part VII, division 5, of the Family Law Act 1975 (Cth) (the Act), and in particular in s.64B, and the orders sought by both parties here clearly fall within the category set out in s.64B(2).

3. The Court’s powers to make parenting orders are set out in s.65D. That power is subject to a consideration of the rebuttable presumption of equal shared parental responsibility in s.61DA and of any s.65DAB parenting plans.

4. In this case I note that both parents wisely accept that orders should be made, and have been made, for joint parental responsibility so the question of the presumption does not arise.  However, as I will note in a moment, the question of equal time or significant and substantial time does arise and is obviously very significant in this case.

5. In deciding this matter, although the parties before the Court are the mother and the father, the Court’s concern and the paramount consideration of this Court is of course to promote the best interests of the children, noting what is set out in division 1, subdivision BA, and in particular what is set out in s.60CA, confirmed by s.65AA in division 6, and the factors to be considered in s.60CC in the context of the objects and principles in s.60B.

6. I note that the general requirement that an order not be made in relation to a child unless s.65F was complied with is waived given the urgency and the other allegations made.

7. The principles that bind this Court are well articulated in Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346 in particular at paragraphs 81 and 82. The first is that, as noted at paragraph 81:

   In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.  However, the legislative pathway must be followed.

8. The pathway and the matters to be considered are then set out in paragraph 82 of Goode, including identifying the competing proposals. 

9. When considering the items noted in paragraph 82 of Goode the Court is looking at identifying the competing proposals of the parties, the issues in dispute in the interim hearing, any agreed or uncontested relevant facts and then, considering the matters in s.60CC, the question of equal shared parental responsibility, and the question of equal time or substantial and significant time.

10. The practical difficulties facing a court in these circumstances were considered by the Full Court of the Family Court of Australia in Marvel & Marvel (2010) 240 FLR 367; [2010] FamCAFC 101, and in particular at [120]-[122] where it was noted (at [120]) that what is happening in such an interim hearing and in the formulation of orders at this time is:

    ...a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing… 

    It is also noted that a conservative approach would usually be adopted to any factual findings and should be “couched with great circumspection” (Marvel at [122]).

11. That is a natural corollary of the fact that competing allegations cannot be tested by this Court on an interim application. In this case we see that there are quite substantial differences in allegations made around family violence, which is a critical factor given the s.60CC(2) factors (and noting subparagraph (2A) of s.60CC).

12. I note that one of the issues also raised in the father’s case outline, which is very relevant, was the question of the delay that can occur between an interim hearing and the final hearing.  Obviously the longer the delay with very young children the greater the impact of the change upon the children and the greater the difficulty in changing what may have occurred.  In that respect, Deiter & Deiter [2011] FamCAFC 82 was relied upon.

13. I note that one of the factors I have in my mind while I go through this process is the fact that for procedural reasons the Court, and in particular myself as the judge allocated and hearing this matter, has availability that might not otherwise be available if the matter had been heard by another judge.

Section 60CC considerations

1. There are two primary considerations when determining what is in the child’s best interests for the purpose of the Act. Firstly, though second in the legislation, is the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence (see ss.60CC(2)(b) and 60B(1)(b)). Greater weight is to be given to this consideration, as noted in subparagraph of (2A) of s.60CC. I note the definition of family violence in s.4AB of the Act.

2. The second factor is the benefit to a child of having a meaningful relationship with both of their parents (see ss.60CC(2)(a) 60B(1)(a)). These are sometimes referred to as the twin pillars (see Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520).

3. The issues identified at s.60CC(3) are said to be additional considerations, however the analysis of these factors and how each of them potentially impacts on the best interests of a child is clearly relevant to, and perhaps more conveniently dealt with prior to, the determinations of the primary considerations under subparagraph (2).

4. I also note that, as there is equal shared parental responsibility, I will need to consider the question of equal time or significant and substantial time. 

Section 60CC(3)

1. I now look at each of the s.60CC(3) additional factors.

(a) views expressed by the child

1. No evidence of the children’s views was given.  In any event, given the age of the children, I would not give any weight to it. 

(b) the nature of the relationship of the child with each of the parents and any other person

1. I note that the mother says that the children are happier now than they were before, but that is untested. 

2. I believe I can only assume that the children have a primary attachment to the mother but a strong secondary attachment to the father of the kind one would expect of young children who have been raised in a family home. 

3. There is allegation that abuse occurred in front of the children but, given the contested facts, I cannot give great weight to that as affecting the relationship with the children. 

(c) the extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about the major long-term issues in relation to the child, to spend time with the child and to communicate with the child

1. There is nothing to lead me to believe that each parent has not done this as best they can. 

2. To the extent that the mother may have spent more time with the children, or communicated more with them, this is a feature, firstly, of the fact that the father was working and had taken on that obligation rather than it being the other way around, and that in recent times his failure to communicate with the children has been due to the mother’s actions in removing the children.  This is not something to be taken against the father.

(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. Up until the recent events, which have complicated matters, I do not see any evidence that either party has failed to meet their obligations to maintain the children. 

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of separation from either of his or her parents, any other child or any other person

1. It seems to me that the mother’s unilateral decision to move the children without consultation is likely to have had on balance a negative impact on the children. 

2. Whilst the primary attachment, one would anticipate, is to the mother, as she has been the full-time carer, nevertheless children raised in a household with their father who is present when not working would be expected to have a strong secondary attachment to him, and his sudden removal from them, and the apparent failure over the last few months for the mother to fulfil her general obligation, in my view, to facilitate reasonable contact with the father while this process was going on, is likely to have had an adverse effect on the children.

3. In the course of submissions, counsel for the mother was asked whether he accepted that if the children remain in Sydney, given in particular the very young age of [Y], it would be very difficult for any kind of real meaningful relationship to be maintained with the father.  Counsel for the mother accepted that that was probably true, but nevertheless stated that in all the facts and circumstances it was in the best interests of the children.

4. That is a reasonable position to take from the mother’s point of view and was quite an appropriate concession to make, but I note that it is a great matter of concern to the Court that this relocation has had, and if it continues or as it continues is likely to have, a significant negative impact upon the capacity of the children to have a meaningful relationship with their father. 

5. That is obviously only one of the factors to consider but, when weighing that particular subfactor, I think it should be given considerable weight given the primary consideration regarding a meaningful relationship.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. What I have said above applies here. 

2. This is, as the mother’s counsel put it, effectively a relocation case but done unilaterally and, rather than raising it with the father and seeking some kind of adjudication while still in Adelaide, the mother has taken it upon herself to move unilaterally. 

3. Obviously with very young children it is going to be difficult and the expense will be very great for them to spend time with the father in Adelaide. 

4. They will be able to communicate with the father if they stay in Sydney by way of Skype or telephone, but I query the ability of a not yet two year old to have a meaningful relationship, or indeed a relationship, with a parent by such indirect contact.

5. The contact which the mother is suggesting in her initiating application, and as I understand it generally in the case in response, would be by Skype and telephone a number of times per week, and in person for about two weeks at Christmas, a week or so at Easter and each odd-numbered year on their birthday.

6. This is a very meagre amount of contact in terms of actual in person time and even of Skype or WeChat or phone time (three nights a week between 7.30pm and 8 pm).

(f) the capacity of each of the children’s parents to provide for the needs of the child, including emotional and intellectual needs

1. Both parents seem to be capable people and there is no suggestion either of them lack the capacity to provide for those needs in that respect. 

2. There are some financial issues I will come to in a moment.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the children’s parents, and any other characteristics of the child the Court thinks are relevant

1. I am not sure that any particular factor there weighs in this case.

(h) if the child is an Aboriginal child or a Torres Strait islander

1. The children are not Aboriginal or Torres Strait Islanders.

(i) the attitude to the child and to the responsibility of parenthood demonstrated by each of the child’s parents

1. The family violence issue aside, there is no suggestion that I see that either parent has other than an appropriate attitude to the children and to their responsibilities of parenthood, noting that they chose to meet those responsibilities in a traditional fashion by dividing between them the labour of caring for the children and the home to the mother and of working to pay for that to the father.

(j) any family violence involving the child or a member of the child’s family

1. The allegations of family violence have been set out above.  There is an admission by the father, although it is not clear how far it goes or precisely what it is to.  

2. There is also a counter-claim by the father that the one event involving physical violence was a mutual matter initiated by the mother.

3. These allegations, and the father’s admission, are relevant and do weigh with the Court and are matters of concern.

(k) if a family violence order applies, or has applied, any relevant inferences that can be drawn from the order

1. This consideration is caught up in the facts in (j) and the family violence issue generally.

(l) the question of an order that would least likely lead to the institution of further proceedings

1. Although relevant, this is obviously a matter that will have to be resolved given that mother has made it very clear that she wishes to pursue her new life, including working and eventually starting a (business omitted), in Sydney, and that the father wants the children to live in Adelaide. 

(m) any other facts or circumstances that the Court thinks is relevant

1. In relation to recent events the mother says that, apart from the family violence, she and the children are happy in Sydney. 

2. She says the children are happy in Sydney.  That question cannot really be tested here. 

Proposals

1. The other factors and circumstances that are relevant, in my view, and which weigh heavily with me, are the fact that when I look at the competing proposals there is very little detail around them.

2. On the one hand for the mother we have the mother and the children, as I understand it, living with an uncle and an aunt.  She is fortunate that she has been able to come to Sydney and have relatives provide her with accommodation, and also with some assistance with her children.  She has also got her mother here, as I understood it, but I assume that is not an indefinite proposition.

3. While she is able to live with relatives she can work full-time which gives her an income and she has some built-in babysitting with relatives and her mother.  But I have nothing from the uncle or the aunt and one’s usual sense of the world is that even the best extended family may be unwilling to continue to allow this mother and her two young children to continue to live with them free gratis and to provide her with free child care.

4. Also the ability of the maternal grandmother to stay in Australia for an extended period is subject to a variety of immigration rules and there will be, one anticipates, it is probable, a limit on just how long she can stay. 

5. So whilst the mother’s case is that she is well settled in Sydney, I think that is a stretch.  I think she is currently settled in Sydney but how long that will last and how stable that is the Court does not know and cannot be satisfied of. 

6. On the other hand the father wishes the mother to return to Adelaide.  He said he wants the children to return to Adelaide, which is the appropriate order.  There was some criticism of the father’s case on the basis that this was a surreptitious way to make the mother come back to Adelaide.  I did not see it that way.  The nature of the order that is appropriate in law is one for the return of the children. 

1. The usual course, although not always the case – see the remarks of Gaudron J in U & U  (2002) 211 CLR 238; [2002] HCA 36 – is that the mother will move back rather than give the children up and if they must return she will return with them, but that is not necessarily always the case. But as I understand the effective position between the parties, it is accepted that if the children are to return to Adelaide the mother will return with them.

2. My initial view was that an order for return of the children would be the appropriate order given the instability of her position in Sydney and the unilateral nature of the removal, and also the possibly long period of time before a hearing. 

3. However, weighing against that is the fact that the mother, if she returns to the Adelaide, will not have a job.  She can live in the family home but it is subject to a mortgage, which the evidence before me indicates requires a mortgage payment of approximately more than $2500 per month period. 

4. The father in submissions offered to pay half of that sum, but the difficulty I have with that offer or proposal as it developed during the course of the hearing is, firstly, the absence of evidence to convince me that he could pay for it, as the mother says that he works for cash in hand and the only reference she gave to him working was working as a (occupation omitted), and secondly, that he did not offer to pay for the full mortgage. 

5. In the absence of evidence regarding the father’s financial circumstances, I have significant concerns that, if the children are ordered back to Adelaide and the mother goes there and she is unable to work and the mortgage cannot be paid for, a situation may eventuate where the mother is forced to leave the home anyway.  This would obviously not be in the best interests of the children and that weighs heavily upon me in this interim application, noting also that the matter can be given a relatively quick hearing return date.

Relocation case

1. I should say that the mother, as I have said, submits that this is in effect a relocation case.  I think that is probably right. 

2. Morgan & Miles (2007) 312 FLR 114; [2007] FamCA1230 to which I was referred, and other cases make it clear that this is really just a specific example of the proper application of the parenting law principles I have referred to earlier.

3. I note Boland J’s comments at [80]-[81] that the child’s best interests remain the paramount but not the sole consideration and also that, in brief, a parent wishing to move does not need a compelling reason to do so; the judicial officer must consider all proposals and may himself, or herself, be required to formulate proposals in the child’s best interests, and the child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement; and there is additionally a consideration of s.60CC factors informed by s.60B; and then the question of shared parental responsibility leading to questions of equal time or significant and substantial time.

4. I then move to consider the fact that, as I have noted before, if the mother and the children stay in Sydney there is no realistic possibility of equal time, or even what I would consider to be substantial and significant time, because of the cost and practical issues around where the father currently lives.  I note that no one raised the possibility of the father moving on the interim application.  However, that is not necessarily a relevant factor again at the moment for this interim application.

5. Balancing all those factors, including the fact that there is an admission of some family violence by way of letter which troubles me, the fact that I am not satisfied that there is a practical financial capacity for the mother to safely move back to Adelaide in the medium term given that the hardship application to the bank will run out soon and she would not have the necessary money to pay the mortgage and I cannot assume that her parents will provide money, and that the father offered to pay for half of the mortgage, not all of the mortgage, and even had he offered to pay for all of the mortgage I have not seen any evidence of his capacity to do so (although I note that he was able to retain legal practitioners to attend in Sydney and that may have been some evidence of financial capacity). 

6. With all these things in mind, as I have said, if the matter were not susceptible to final determination for an extended period, the issue would still be in balance.  However, as I have time available to determine the proceedings on a final basis in Sydney in October this year, I propose to dismiss the father’s application, and to make orders for the urgent hearing of the matter in Sydney on Tuesday, 2 October 2018, and I apologise to counsel if that is inconvenient to them but that is the date that is available. 

7. I will make standard directions for hearing which will be sent to the parties.  Each party will bear their own costs of this application, and I will order the appointment of an independent children’s lawyer.

8. I am going to order a family report by a report writer in Sydney, noting that it may not be possible for that report to be produced prior to the hearing.  However, it seems to me that it is better to hear the matter quickly without a family report, if need be, than to wait until next year, or else to further consider requiring the children and presumably mother to move Adelaide in these circumstances because of that delay.

9. And that brings me then to the final question of what contact there should be and how it should be arranged in the meantime, so that so far as possible the children have the benefit of maintaining some of kind of meaningful relationship with their father until the matter can be finally determined in October 2018.

10. I will adjourn for 15 minutes to 3.30pm to allow the parties to take instructions on that issue.

11. The father seeks WE Chat contact and the right to spend time once with the children in Sydney.  He also seeks an order that the mother fly with the children to Adelaide once to facilitate time with him.  The latter proposal is opposed.  I propose to order the WE Chat and the right to two visits in Sydney, but not that the mother fly to Adelaide.  I will make orders.

I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Judge B Smith

Date: 14 August 2018