Lamb and Lamb
[2012] FMCAfam 737
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAMB & LAMB | [2012] FMCAfam 737 |
| FAMILY LAW – Parenting – where the father unilaterally relocated from (omitted) to (omitted) with two children – where the children were until then being living in week about shared care arrangement and had been since January 2009 – where the matter has a long history in the court system – where one child is suffering obvious psychological distress – where the mother seeks the return of the children to (omitted) – whether the children should remain in (omitted) in the interim or be returned to (omitted) – whether consideration should be given to splitting siblings. |
| Family Law Act1975 ss.60CC, 61DA |
| Goode & Goode (2006) FLC93-286 |
| Applicant: | MR LAMB |
| Respondent: | MS LAMB |
| File Number: | NCC 1451 of 2008 |
| Judgment of: | Terry FM |
| Hearing date: | 31 May 2012 |
| Date of Last Submission: | 31 May 2012 |
| Delivered at: | Tamworth |
| Delivered on: | 1 June 2012 |
REPRESENTATION
| Solicitor Advocate for the Applicant | Ms Snell |
| Solicitors for the Applicant: | Rice More & Gibson |
| Solicitor Advocate for the Respondent | Mr Barnard |
| Solicitors for the Respondent: | Higgins & Dix |
| Solicitor Advocate for the Independent Children’s Lawyer | Ms O’Rourke |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
The parties have equal shared parental responsibility for the children X born (omitted) 2001 and Y born (omitted) 2004.
That the child Y be returned to mother in (omitted) by 5.00pm on Sunday 3 June 2012 and spend following week with the mother.
That if Y is not returned as ordered then a Recovery Order may issue at short notice.
Both parties are to file and serve a brief Affidavit concerning their financial circumstances, including their employment and if that ceased in the last twelve months details of past employment, ownership of any property or businesses, ownership of any motor vehicles and any other information that might assist the Court to make a decision in regard to the preparation of a experts report by 5.00pm on 6 June 2012.
This matter is adjourned to 9.30am on 8 June 2012 for further consideration of appropriate orders in relation to the child X.
Liberty is granted to the mother’s solicitor and father’s solicitor provided that the parties are present in their solicitor’s office at the time of the mention.
Until 5.00pm on 8 June 2012 all previous orders concerning where the child X is to live and spend time with orders are suspended and X will live with the father.
IT IS NOTED that publication of this judgment under the pseudonym Lamb & Lamb is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1451 of 2008
| MR LAMB |
Applicant
And
| MS LAMB |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
I am required to make a determination about interim parenting arrangements for X, 11, and Y, 8.
In February 2012 the father unilaterally relocated the children to (omitted). Prior to that they had been living in a week about shared care arrangement in (omitted) since January 2009.
The mother promptly filed an application for a recovery order but between the relocation and the first return date of the mother’s application children spent no time with the mother.
On 26 March 2012 orders were made for Y to spend alternate weekends with the mother pending an interim hearing, but X has continued to spend no time with her.
The justification put forward by the father for the unilateral relocation was that X was threatening self-harm if forced to continue to live with the mother. The father also made a few complaints about the mother’s treatment of Y and about things Y had allegedly been exposed to in the mother’s home but he raised no concerns in his initial affidavit about the mother’s relationship with Y and nor does he still.
The mother said that the situation between herself and X was not as serious as the father made out and could be managed with counselling. She sought orders that both children live with her in (omitted), although she also told Ms C, the Family Consultant who saw the parties and children at a child inclusive child dispute conference which was ordered pursuant to s.11F of the Family Law Act, that she willing to be flexible and take things slowly with X if necessary.
The father sought orders that the children live with him in (omitted). He said that X’s well-being required that he continue to live with the father and that both children were settled in (omitted). He proposed that Y spend time with the mother on alternate weekends but made no proposal about X spending time with the mother.
The Independent Children’s Lawyer submitted that there was reason to be concerned about X’s well-being if he was required to live with the mother. She proposed that the children continue to live with the father in (omitted), that Y continue to spend alternate weekends with the mother and that X spend two hours with the mother supervised at (omitted) Contact Centre each alternate weekend.
This proposal by the Independent Children’s Lawyer conflicted with the recommendation by Ms C in the 11F memorandum, to the effect that the court should considering requiring the father to re-establish the children’s residence in (omitted).
This matter is very complex and the Court is not bound by the proposals of either the parties or the Independent Children’s Lawyer. As I flagged to the parties during submissions, there are other possibilities and these include the following:
(1)That the children’s residence be re-established in (omitted) and that the week about resume either for both children or, if X needs some protection at present, for Y, with other arrangements to be made for X.
(2)If it is considered that X is at risk and that X should be permitted to remain in (omitted), that the siblings be separated and that X live with the father in (omitted) and Y live with the mother in (omitted), with Y to visit the father on alternate weekends. Ms C in the 11F memorandum flagged this as something the Court might need to consider.
Background
The mother is 42 and the father 47. They commenced cohabitation in 2000 and separated in March 2008.
The father commenced court proceedings in May 2008 and the parties were frequently in Court during 2008, 2009 and 2010. 2011 was a year of respite for them but court proceedings recommenced in February 2012.
The Court file is now into its fourth volume.
A consideration of the material filed in the previous proceedings gives rise to great concern.
The first application was filed by the father in the Local Court and was for a recovery order. He obtained one, together with an interim order that the children live with him. An Apprehended Domestic Violence Order (ADVO) was made against the mother at this time and there was a period of five months in 2008 when, if the information in Ms C’s 2010 Family Report is correct, because of the ADVO the children did not see the mother at all.
After interim orders were made by the Local Court the proceedings were transferred to the Federal Magistrates Court at Newcastle and the matter came before Lapthorn FM. He appointed an Independent Children’s Lawyer, requested the Department of Community Services to intervene (an invitation never taken up) and transferred the matter to the Family Court.
In January 2009 interim orders were made by consent in the Family Court for a week about shared care arrangement.
While the matter was in the Family Court, a Children & Parents Intake Assessment (CAPIA) was prepared but more importantly, a Family Report was prepared in June 2010, something which nobody referred to during the interim hearing before me yesterday.
The Family Report is on the file attached to an affidavit of Ms C dated 3 June 2010 and it makes very disturbing reading. There is reference in it to family violence, which both parties apparently admitted to having perpetrated; to both parties having assault convictions; to the mother having a conviction for assaulting a 14 year old; and to a complaint having been made that the mother had excessively disciplined her older daughter, Z.
There is reference to the children having a history of difficulties at school to which neither party was responsive, and to many school absences and homework rarely completed.
There is reference to the father seriously denigrating the mother and to the mother having been convicted of an assault on the father.
There is reference to X expressing thoughts of suicide, and that was also referred to in some documents tendered yesterday which involved an assessment of X when he was eight years old.
There is a reference to a teacher saying that X had a sad affect at school and suffered from bullying, and there are allegations in the current proceedings which suggest that this continued to be the case after final orders were made in June 2010.
Ms C expressed concern in the Report about the conflict between the parties and said as follows:
Unfortunately, the conflict between the parents has occurred over an extended period of time and will have had a deleterious impact on the children. Specifically, X and Y will have suffered grief and loss due to the initial parenting separation which will have been subsequently heightened due to their separation from their previously primary caregiver. They will have experienced trauma and emotional distress at witnessing and having to manage the high level of conflict which has occurred between the parents. All of this will have meant that the children have not been able to focus on age-appropriate developmental tasks and accordingly, their developmental progress has been hindered.[1]
[1] Family Report paragraph 91
Ms C expressed concern about both parents. She said as follows:
The primary limitation in the mother’s household would appear to be the past history of physical assault on the children and the father and the potential future risk of physical harm this might create for the children. The primary limitation in the father’s household would appear to be his ability to prioritise the emotional and cognitive needs of the children and his ability and willingness to facilitate a meaningful relationship for the children with their mother.
I appreciate that Ms C’s evidence was never tested. If the matter had proceeded to a hearing she might have been challenged about the accuracy of factual matters in the Report and there might have been a challenge to her opinions. My purpose in referring to the Report is to make it clear that this matter is and always has been a highly troubling and complex matter in which serious concerns have been raised about both parents.
Ms C made no recommendation in her Report about what should happen to the children, save that she recommended that the week about shared care arrangement should not continue.
Despite this, on 29 June 2010 the parties and the Independent Children’s Lawyer consented to final orders for a continuation of that arrangement.
A notation to the orders records the agreement of the parties and the Independent Children’s Lawyer that the children were not at risk of physical harm in either household.
There is no reference that I can see in the Report to the father having any ties in (omitted) although the father’s solicitor said yesterday that when the orders were made on 29 June 2010 the father was already partially based in (omitted).
The consent orders were followed by only a brief period of peace. On 31 August 2010 the mother was informed that her older daughter Z had been seriously injured in a car accident. The mother had to rush off to be with her daughter and she arranged for the maternal grandmother to collect the children from school on Friday 3 September 2010, the commencement of the mother’s next week with the children.
When the maternal grandmother went to the school however she was told that the children were not there because the father had collected them on the Wednesday and had relocated them to (omitted).
The mother contacted the father who said that he would not be returning the children and she immediately filed an application for a recovery order.
On 5 October 2010 Lapthorn FM made orders that the children be returned to (omitted) and that neither party relocate their residence more than 50 kilometres of (omitted).
I was informed yesterday that X had been taken to counselling afterwards to do with issues concerning the injury to his sister. I wonder what impact the father’s actions at this time, a time of high distress to the family, had on X.
In any event after this disruption the week about arrangement continued and it continued until on 17 February 2012 when the mother went to the school to collect the children and found they were not there and was told they had been relocated to (omitted). The mother again promptly filed an application.
The approach to be taken in interim proceedings
In Goode & Goode[2] the Full Court set out the general approach which the Court should take in interim proceedings and suggested that among things it was helpful for the Court to identify matters in dispute and matters which were not in dispute.
[2] Goode & Goode(2006)FLC93-286
In this case there are a very large number of matters in dispute and they include the following:
·which of the parents was predominantly responsible for the large number of absences the children had from school in 2011.
Ms C in her 2010 Family Report - and this is untested evidence – sheeted home to the father responsibility for school absences prior to that date, but the father made no admissions in the current proceedings about whether he was responsible for the continuing problem with the children’s school attendance and it is not possible at this stage for me to get to the bottom of this.
·The extent of the dysfunction in the relationship between the mother and X and whether it is as serious as the father maintains or is of a less serious nature.
·Whether the dysfunction in X’s relationship with the mother is the result of the mother’s actions, the father’s handling of the situation, the intense conflict between the parents or a combination of all of three.
·Whether X placed a coat hanger around his neck and threatened to hang himself after a recent dispute with the mother.
·Whether X’s statements that he will self-harm if returned to the mother should be taken literally given that he has made threats of self harm on a number of occasions in the past including prior to the parties agreeing to the consent orders in 2010.
·The extent to which the father’s discontent with remaining in (omitted) has impacted on X.
·The extent of X’s problems at school since the consent orders were made and the extent to which each party has caused or contributed to those problems or failed to deal appropriately with them.
·Whether the mother regularly consumes alcohol to excess and the extent if any to which that causes difficulties for the children in her home. The father made the same complaints about the mother’s alcohol consumption in the earlier proceedings and prior to the consent orders being made as he makes in the current proceedings.
The matters which are not in dispute are as follows.
·The children have lived in (omitted) for many years and have attended the same school in (omitted) for many years.
·The children lived in a week about shared care arrangement in (omitted) from January 2009 to February 2012, save for the disruption in 2010 which possibly lasted for a little over a month when the father unilaterally relocated them to (omitted).
·An order was made on 5 October 2010 prohibiting either party from relocating the children’s place of residence more than 50 kilometres from (omitted).
·The father unilaterally relocated the children to (omitted) in February 2012 and has unilaterally enrolled them in a new school.
·The children have siblings in the mother’s home, namely a sister aged about three and an older sister.
·X has been a sad and troubled child for more than three years and to all appearances until recently neither parent had been either willing or able to do anything to help him.
Another fact which cannot reasonably be disputed is that there was no evidence that there was any problem in the relationship between Y and the mother.
In interim proceedings I cannot make findings about matters in dispute and for that reason matters which are not in dispute assume considerable importance.
I cannot however simply ignore disputed matters. I have to make some assessment of the seriousness of them, and there are occasions when allegations are so serious that I have to err on the side of caution and make orders to protect children even if I cannot make positive findings that certain events have occurred, regrettable as that may turn out to be if the Court finds that it has acted on the basis of exaggerated or fabricated evidence.
I am placed in a particularly difficult position in this matter in relation to the allegations concerning X.
There can be no doubt that X has been suffering for years and that for years he has on occasions made threats of self-harm.
On one occasion in 2010, prior to the consent orders being made, he threatened to kill himself if he had to return to the mother, and yet a few months later the parents and the Independent Children’s Lawyer signed off on the week about consent orders.
I cannot ignore the possibility that the father is exaggerating the things that X has said to him because of his own strong desire to live in (omitted) rather than (omitted).
I must take into account that X has since the unilateral relocation repeated his allegations about difficulties in his relationship with the mother both to Ms C and to a psychologist Mr M, but it is of concern to me that the sessions with Mr M were apparently family sessions at which the father and Y were also present and were not individual sessions with X.
On the other hand the allegations X is allegedly making are serious and he is a child who has been in trouble for years, and the other background fact that I have to take into account is that the mother has a conviction for assaulting a 14 year old and that a complaint was made about her excessively disciplining Z.
It is not, therefore beyond the bounds of possibility that there is at least some truth – much more truth than the mother is willing to admit –– in what X is allegedly saying about the mother’s treatment of him and about recent events in the mother’s household.
The children’s best interests
I have to treat X and Y’s best interests as the paramount consideration in determining appropriate orders, and to determine their best interests I must have regard to the matters in S.60CC(2) and (3) of the Family Law Act, although in interim proceedings, as the Full Court pointed out in Goode & Goode, it is not always possible for the Court to make many findings about these matters.
The primary considerations in s.60CC(2) are:
i)the benefit to the children of having a meaningful relationship with both of the children’s parents; and
ii)the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
I cannot make findings today about whether one party’s proposal or the other’s is more likely to mean that the children will maintain a meaningful relationship with both parents.
If the father is providing a better environment for the children, and if he is willing and able to encourage the children’s relationship with the mother, then the children remaining with him may be best suited to that end. But if he does not encourage that relationship and seriously denigrates the mother, then leaving the children with the father may cause the children’s relationship with the mother and the maternal family to wither away.
There was some evidence in the 11F Memorandum that the mother may have spoken ill of the father, so I must also have some concern about what might happen to the children’s relationship with the father if they live with the mother.
I must consider the need to protect the children from being subjected to, or exposed to, abuse, neglect or family violence.
Abuse is defined in the Family Law Act, and despite the father’s throwaway comment in his first affidavit I am not convinced there is any evidence that either child is likely to be exposed to abuse as it is defined in the Family Law Act in the mother’s home.
The allegations about the mother’s treatment of X are more appropriately dealt with in the context of assessing her parenting capacity than by trying to determine whether the mother may have abused X as abuse is defined in the Family Law Act.
There was no evidence that the children were likely to be subjected to or exposed to neglect or family violence in the mother’s home and no evidence that they were likely to be subjected to or exposed to abuse, neglect or family violence in the father’s home.
I must have regard to the additional considerations in s.60CC (3), and the first of these are the children’s views.
The Independent Children’s Lawyer said that both children wanted to remain with the father, and Ms C reported something similar in the 11F memorandum. I cannot place weight on those views in these interim proceedings however because I cannot be sure whether the children’s views have been influenced by the father.
In addition Y is only eight years old, and I have no means of gauging how strongly held her views are, or how consistent they are, or whether she would not be just as happy if she went back to live with the mother.
Only an expert’s report will provide information about the children’s views on which I may be able to place weight although given the children’s ages and the fact that they are caught in a deleterious conflict situation the weight to be given to their views will always have to be the subject of very careful consideration.
I must have regard to the nature of the relationship of the children with each of their parents and any other relevant persons.
Y has a good relationship with each parent. X apparently has a good relationship with the father, although only an expert is going to be able to tell me whether there are any problems in that relationship.
The problems may not be apparent in terms of X being willing to be with the father or do things with the father, but there could still be underlying problems in the relationship.
X and the mother do not have a good relationship at the moment. X is not seeing the mother. Whether the problem between them is slight and could be overcome if they began to spend time together again and had some therapy, or is serious, I do not know.
I must have regard to the relationship between X and Y because they are siblings, but I was not told anything about it in the material, and the only reference to their relationship in the tendered documents suggested that they fought with each other sometimes which is not very unusual.
I must also have regard to the fact that these children have siblings in the mother’s household as well. They have a younger sister, who has been part of their lives week in and week out since she was born, and they have two older siblings, one of whom is currently living in (omitted) and with the mother.
There was no evidence in the case directed to any of these sibling relationships or the weighting which I should give to the different combinations of relationships.
I must have regard to the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
I have some concerns about that in relation to both parents, but I cannot make findings about this matter at this interim stage.
I must consider the likely effect of any change in the children’s circumstances.
There was no compelling evidence that there would be any difficulty for Y if I made an order that she returned to (omitted), to live either in the week about arrangement or to live primarily with the mother.
I have to be more cautious in relation to X however, because I cannot be certain how serious the problems between the mother and X are. There has to be a question mark over how X would cope if he returned at present to live with the mother.
I must have regard to the practical difficulty and expense of the children spending time with a parent.
There is such a difficulty in this case and the father has created it by relocating 350 kilometres from (omitted).
The distance creates a particular problem when it comes to looking at options for some therapy to occur between the mother and X to deal with any problems in their relationship and when it comes to organising for X to spend some time with the mother.
The Independent Children’s Lawyer proposed that X should commence spending time with the mother at the Contact Centre in (omitted). This would involve a trip of well over two hours each way for the mother and of course a trip for the father, but I am told that it would be the same distance for him to (omitted) as it would be to (omitted).
I do not know anything about the parties’ financial circumstances, but the mother’s solicitor was concerned about the length of the trip.
If the children were living in (omitted) it would be much easier for the mother and X to engage in some therapy and options would exist for X to spend some time of a different nature to supervised time with the mother, for example perhaps short periods of time during the day.
I must have regard to the capacity of each parent to provide for the needs of the children, including their emotional and intellectual needs.
Both parents are capable of providing for the children in terms of feeding them and clothing them. Both parents have a poor history of attending to the children’s intellectual needs. The father has been ensuring that the children attend school regularly since he moved them to (omitted), but he is under the spotlight of the court at the moment so I cannot place much weight on that.
Both parents, by engaging in conflict with each other in the past, have shown a lack of capacity to provide for the children’s emotional needs.
The father’s decision to unilaterally relocate with the children not once but twice suggests a marked incapacity to provide for the children’s emotional needs, and further until the court made an order in March 2012 he had severed Y spending any time with the mother for no good reason.
I must treat the allegations the father has made concerning the mother’s alcohol consumption seriously at this stage but how serious that issue ultimately turns out to be remains to be seen. The father made the same allegations prior to June 2010. That did not stop him consenting to week about then, and he did not raise any concerns about the mother’s alcohol consumption again until required to respond to the mother’s application for a recovery order in the current proceedings.
In summary I have concerns about the capacity of both parents to provide for the needs of the children.
The father has taken X to counselling in (omitted) since he has had him in his care. On the face of it that is a positive thing, but I also note that when he did this the father was well aware that there were court proceedings on foot or well aware that court proceedings would be likely to commence and his efforts to assist X have only happened under the glare of those court proceedings. He did not do anything to try and assist X prior to that.
I must have regard to the children’s maturity, sex and background.
That does not assist me as a separate consideration.
I must have regard to each parent’s attitude to the children and to the responsibilities of parenthood.
The father showed a very poor attitude to the children and to the responsibilities of parenthood in unilaterally relocating the children to (omitted). This has created a dislocation for the children. It has separated them from their mother and the maternal family. It has required a change of school.
I also consider that the father has acted exceptionally poorly in the past in asking the police to attend at the mother’s home to do welfare checks when he could not get the children on the telephone. That showed a marked insensitivity to the children’s needs.
The father also prioritised his own interests over Y’s interests in particular in making the choice to relocate to (omitted).
The mother has also shown a poor attitude to the children and the responsibilities of parenthood in the past in that she has apparently done nothing to try to assist X with the difficulties he has been having at school.
I must have regard to any issues of family violence.
Neither party raised issues of family violence in the current interim proceedings although it is apparent from the family report that family violence has been an historical issue.
There are no family violence orders in place.
It is not helpful for me to consider which order is least likely to lead to further proceedings in interim proceedings.
I must also consider any other relevant matter.
The Independent Children’s Lawyer submitted that although it was unfortunate that the father had imposed a change on the children, I should not impose another one, in case, after a final hearing the court ordered that the children live with the father.
I do not accept that this should deter me from making an order for the children’s return to (omitted).
The children have lived in (omitted) for many years. They have attended school in (omitted) for many years. They are familiar with (omitted). If I order their return to (omitted) they will not be going to some strange place, and if an order is made that they ultimately live with the father, it will be because that has been determined by a court to be appropriate or has been done with the consent of the parents (although I would be concerned about the parties going down the path of consent orders again) and it can be explained to the children, and it will be properly and lawfully done.
I am not convinced that the fact that I might order the children back to (omitted), and that they might later be allowed to relocate, is a reason for me not to order their return.
Another relevant matter is that the father has long standing ties with (omitted), and he maintained a residence in (omitted) until he unilaterally relocated in February 2012. The Independent Children’s Lawyer, although not the father’s solicitor, told me that the father had given up his previous residence, but there was no evidence that he could not resume living in (omitted) if he chose to do so.
A summary of the findings, apart from those that I have just referred to, about the best interest considerations are that both parents have a good relationship with Y and are able to provide for her day-to-day needs at least.
I must have some concerns about the mother’s capacity to manage X and about how X would cope with a return to the mother’s care, and those are about the limit of any positive findings I can make concerning the s.60CC(2) and (3) matters apart from findings about the parents attitude which I stand by.
Parental Responsibility
Both parents sought an order for sole parental responsibility.
Pursuant to S.61DA of the Family Law Act I must apply a presumption that it is in the best interests of the children that their parents have equal shared parental responsibility for them, absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the children or family violence.
I have information that the mother was convicted of assaulting the father, and there are allegations in the 2010 Family Report, untested evidence of course, which suggest that each parent may have been violent to the other during the relationship. I consider it open to me to find that there are reasonable grounds to believe that both parents may have been violent to the other in the past and therefore the presumption does not apply.
I can still make an order for equal shared parental responsibility if I choose to do so, and in this case I would be extremely concerned about making an order that one of these parents had sole parental responsibility for these children.
The parents are in high conflict. The father has acted unilaterally. These things make it dangerous for me to make an order for sole parental responsibility and to give one of these parents sole parental responsibility for the children.
I intend to make an order for equal shared parental responsibility and I consider that important because I consider that X needs counselling or therapy and both parents should be involved in that. The best way to make sure that this occurs is to require them to discuss and agree on that occurring, which they will have to do if I make an order for equal shared parental responsibility providing, of course, that they comply with the order.
Conclusion
The father’s counsel submitted that the father’s action in relocating to (omitted) with X and Y was justified by the disclosures allegedly made by X. I do not accept that submission.
The father’s action went well beyond anything that was necessary to protect X. He could have protected X by not returning him to the mother after his week with him in (omitted), while at the same time returning Y and continuing his own place of residence in (omitted).
The father did none of these things, and the action he did take went far beyond anything necessary to protect X. Indeed I consider the father’s action was very likely motivated by his own self-interest in living in (omitted). The father withheld both X and Y from the mother and cut Y off from spending any time with her mother for nearly a month for no good reason.
He gave up, I am told by the Independent Children’s Lawyer but not by the father’s solicitor, his residence in (omitted) and relocated in clear breach of a court order.
This was not even just a breach of the order for equal shared parental responsibility. It was a breach of the order that he not relocate the children more than 50 kilometres from (omitted). He also failed to promptly commence proceedings, although he has made some excuse for that.
The father’s actions were reprehensible.
However, as the Independent Children’s Lawyer pointed out, I must ensure that I make orders which are in the children’s best interests and I cannot, in the context of these proceedings, make orders purely designed to punish the father for contravening court orders.
The matter is complex, but in my view the preferred outcome on an interim basis is that both children return to live in (omitted). Ms C recommended that in the 11F memorandum after having interviewed both parents and both children. I must have regard to that recommendation, although it is untested, because Ms C has an advantage over me in having spoken to both parties and to the children.
The Independent Children’s Lawyer does not support this outcome, but my own view, independent of Ms C’s recommendation and based on the evidence available to me, is that this is the preferred interim outcome.
It will allow future long term arrangements for the children to be considered against a background of some normalcy for them and not against the background of one parent having unilaterally relocated their residence.
I am conscious of the fact that I need to be careful not to make an order purely designed to punish the father for contravening court orders, but the history of this matter suggests to me that the children’s long term relationship with their mother and their siblings in (omitted) could be placed in jeopardy if the father’s blatant breaching of court orders is condoned.
The father, by relocating, showed no regard for the children’s best interests. He has placed a distance of 350 kilometres between the children and the maternal family and created practical difficulties with them spending time with the maternal family. He has made it difficult if not impossible for practical therapeutic steps to be taken to deal with whatever problems exist between the mother and X.
It does not automatically follow that if the children return to live in (omitted) that the week about must be restored for them both. It ought to be restored for Y, because there is no concern about Y in regard to her relationship with either of her parents.
I consider, however, that I need err on the side of caution in regard to X and proceed slowly with this.
I am not necessarily convinced that X’s time with the mother needs to be limited to two hours at a contact centre, but upon X’s return to (omitted) some therapy could commence and perhaps after a relatively short period some limited periods of time during the day could occur.
The father’s solicitor certainly did not indicate during submissions that the father would refuse to return to live in (omitted) if I made an order that the children had to be relocated to that place.
The way I intend to deal with this matter is to make an order that Y be returned to the mother in (omitted) immediately. I will adjourn the matter for seven days so that I can further consider the appropriate orders about Y and X after the father has some time to consider his position about whether he intends to return to live in (omitted).
I would like the parties in the meantime to make some inquiries about the possibility of therapy occurring between the mother, X and the father either in (omitted) or (omitted) and be prepared to give me some information about that on the next occasion.
I would also like to say that in my view Ms C’s recommendation that a Chapter 15 expert’s report be prepared in this matter should be given very serious consideration. I note that some concern was expressed about the father’s capacity to contribute to the cost of that and I am going to order that by 5 pm on 6 June 2012 each party file a brief affidavit concerning their financial circumstances including their employment, and if that has ceased within the last 12 months, details of past employment, ownership of property or a business, ownership of any motor vehicles and any other information which might assist me to make a decision about the capacity of each of them to contribute to the preparation of an expert’s report.
I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for judgment of Terry FM
Date: 2 August 2012
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