Leibold and Leibold
[2010] FMCAfam 383
•7 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEIBOLD & LEIBOLD | [2010] FMCAfam 383 |
| FAMILY LAW – Children aged 8, 5 & 3 – arrangements for care pending trial – mother wishes to live in Brisbane with children – mother moved to Brisbane from Adelaide in December 2009 – father characterises move as unilateral – mother asserts that she had no alternative but to move interstate to escape violent and abusive relationship – family violence – father asserts mother psychologically unstable – nature of interim hearing – considerations relating to relocation – section 60CC factors – best interests. |
| Family Law Act 1975, ss.4; 60B; 60CC; 61DA; 65DAA |
| Goode & Goode (2006) FLC 93-286 In the Marriage of Patsalou (1994) 18 Fam LR 426 JG & BG (1994) 18 Fam LR 255 AMS v AIF (199) FLC 92-852 C& S [1998] FamCA 66 Morgan & Miles [2007] FamCA 1230 U & U (2002) FLC 93-112 Fragomeli & Fragomeli (1983) FLC 92-393 |
| Applicant: | MR LEIBOLD |
| Respondent: | MS LEIBOLD |
| File Number: | ADC 774 of 2010 |
| Judgment of: | Brown FM |
| Hearing date: | 1 April 2010 |
| Date of Last Submission: | 1 April 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 7 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dickson then Ms Dannells |
| Solicitors for the Applicant: | Adelaide Family Law |
| Counsel for the Respondent: | Mr Vaughan then Mr Burrows |
| Solicitors for the Respondent: | Andrew Burrows & Associates |
ORDERS
The mother return the children [X] born [in] 2001, [Y] born [in] 2003 and [Z] born [in] 2006 to Adelaide by 5:00pm on 16 April 2010 or such other later date as the parties may agree.
UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:
In the event the mother elects to return to live in the Adelaide metropolitan area, pending the final hearing of this matter, the father vacate the former family home at [W] by 5:00pm on 16 April 2010 and thereafter the children live with the mother at that address and she have sole occupancy of the property.
In the event the mother elects to live in Adelaide, pursuant to the provisions of order 2 hereof, the father pay the mortgage and rates relating to the aforesaid property as they fall due.
In the event the mother elects to live in Adelaide, pending final hearing, the children spend time with the father as follows:
(a)From 9:00am Saturday until 4:00pm the following Sunday on alternate weekends during school terms but commencing on 17 April 2010; and
(b)In the other week of each fortnight during school terms from 4:00pm Wednesday until 8:00am the following Friday commencing 21 April 2010; and
(c)For half of each school holiday period the halves to be agreed and failing agreement to be the first half.
In the event the mother elects not to return to live in Adelaide permanently, pending the final hearing of this matter, the children live with the father and spend time with the mother at times to be agreed between the parties or as otherwise directed by the court.
In the event the mother fails to comply with order 1 hereof a recovery order issue in the normal form authorising the Marshall of the Court and officers of the Australian Federal Police to locate the children and deliver them to the father.
An injunction issue and each party be restrained from changing the children’s place of residence to one outside the municipal area of Adelaide without the written consent of the other.
An injunction issue and each party be restrained from denigrating or rebuking the other or discussing these proceedings in the presence of or hearing of the children.
The matter is fixed for final hearing before Federal Magistrate Brown on 29 November 2010 at 10:00am NOTING 4 days has been allowed.
That 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 Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 10 September 2010.
The Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.
The parties have liberty to re-list the matter in respect of property issues.
The reasons for judgment be transcribed and provided to the parties.
Further consideration of the matter is adjourned to 11 October 2010 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Leibold & Leibold is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 774 of 2010
| MR LEIBOLD |
Applicant
And
| MS LEIBOLD |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment are being delivered orally as there has been insufficient time for them to be reduced to type. Necessarily, as the case raises complex issues, the reasons will be lengthy and will take some time to deliver. I regret the burden this will place on the parties.
Mr Leibold, the father, and Ms Leibold, the mother, are the parents of [X], born [in] 2001, [Y], born [in] 2003 and [Z], born [in] 2006.
These proceedings arise because in December of 2009 the mother and children travelled from Adelaide to Brisbane. The father's position is that the trip was a temporary holiday. The mother's position is different.
It is her case that it was intolerable for her and the children to continue to occupy the former family home in [W], a suburb of Adelaide, with the father. As such, she decided to return to live in Brisbane with the children. Brisbane is where she was born and has lived for the majority of her life. More importantly, it is where she feels emotionally supported because it is where her family and friends live.
Until fairly recently, the father has been a [occupation omitted]. His employment has taken him on several [jobs] overseas, as well as to training courses within Australia. It is common ground between the parties that the mother remained in the home to provide care for the children, whilst he was away.
In these circumstances, the mother argues that it is incontrovertible that she has been the children's primary carer. As such, her happiness and personal sense of stability and security are likely to be fundamental to the wellbeing of the children concerned.
The father categorises the mother's decision to move the children from Adelaide to Brisbane as being a unilateral one, which was achieved against a background of deceit and opportunism. It is his case that he has wasted no time to bring his application, which seeks the return of the children to Adelaide, as soon as is practicable.
On the other hand, it is the mother's position that the court should make orders regularising the residence of the children in Brisbane in her care. In these circumstances, she proposes the children spend time with their father one weekend per month, during term times and for more extended periods during school holidays. In her submission, this regime will not be greatly different to what has occurred up until this stage, given how often the father was absent from the children's lives, given his work commitments.
The father has left [occupation omitted] and is now a [occupation omitted]. He has raised concerns about the mother's mental health and excessive alcohol use, particularly that she attempted suicide in November of 2009, which he contends impacts upon her capacity to parent three young children of the ages of [X], [Y], and [Z].
In these circumstances, he is vehemently opposed to the children living far away from him in Queensland, it being neither practicable nor fair to expect him to give up his career and move to Brisbane, effectively at the mother's dictation.
This is the background to his application that the court should make orders requiring the children to be returned to Adelaide. In this eventuality he makes a number of proposals for the care of the children, pending a more comprehensive examination of the mother's wish to relocate the children's place of residence permanently to Brisbane.
In making these proposals, he acknowledges that the court has no authority to direct the mother personally as to where she is to live, given her status as a mature Australian citizen. The court's authority extends only to the children.
Firstly, in the event the mother determines that she will continue to live in Brisbane, he proposes that the children should live predominantly with him in Adelaide and spend time with their mother as determined by the court.
Secondly, if the mother elects to return to Adelaide, he proposes that the children live with each of their parents on a week about basis.
Thirdly, again if the mother elects to return to Adelaide, in recognition of the fact that the court may well be of the view that the parties' previous care arrangements for [X], [Y], and [Z] may not sustain an equal time arrangement, he proposes the children live with him on alternate weekends and for two other consecutive evenings, during the other week of each fortnight.
The parties are not wealthy individuals. The mother is not currently in the paid workforce. In these circumstances, in the event the mother does return to Adelaide, the father has undertaken that he will vacate the former family home and move in with his sister, who lives close by.
This will leave the home, which is fully furnished, free for the mother and children to occupy. He will continue to pay the mortgage. As such, he contends the mother will have some level of security, pending the final outcome of the case.
It is also the father's position that he is currently working conventional hours, Monday to Friday. As such, with the assistance of his mother, he will be able to discharge his responsibilities to care for the children, if the court adopts either the equal time arrangement or the more limited time arrangement which he has proposed.
These proceedings arise against a background of recently arisen emergency and urgency. The issue of relocation of the children is to be determined by the court on an interim or provisional basis. This means necessarily that the hearing involved must take place in a shortened form.
There is no time for any cross‑examination of either of the parties concerned. As a consequence, the court is unable to make findings of fact which will resolve issues in dispute between the parties. There are many such issues of contention between the parties, the most significant of which include the following:
·When did the parties finally separate? In 2007, as the mother contends, or more recently in December of 2009, as the father propounds?
·How involved has the father been in the care of the children? Was he a distant and irritable parent, as the mother says, or a committed and involved one, as the father deposes?
·What was the nature of the parties' relationship? In particular, was the father domineering and punctilious in his attitude towards the mother, causing both her and the children to be often upset and afraid?
·What are the implications of the mother's mental health? Was her illness precipitated by the father's abusive behaviour towards her and, as such, likely to resolve if she remains living in Brisbane?
·On the other hand, does the mother's psychological health have significant implications for her capacity to parent the children adequately?
The parties have each launched concerted attacks on the character of the other. The father contends the mother is dishonest and antisocial, and the behaviour of members of her family constitutes a threat to the welfare of the children.
The mother categorises the father as aggressive, alcoholic, and controlling, such that he was not able to provide properly for the children financially during the parties' relationship.
To say the proceedings were rigorously contested would be an understatement. Each party has filed multiple and compendious affidavits. Notwithstanding the detail in these various affidavits, the fact remains that I cannot resolve the very many issues in dispute between the parties at this stage of proceedings.
In addition, at this stage, other significant sources of evidence are not yet to hand. The most significant of these is a family assessment, which will be prepared by a suitably qualified expert, which will examine the nature of the children's relationship with each of their parents.
Such a report will take time and resources to prepare. It is likely to be central to the court's deliberations. Necessarily, such reports are rarely available at the interim stage.
In relocation cases, the nature of the interim hearing itself is likely to have implications for the outcome of the case at the interim stage. The High Court has directed that relocation cases require careful and delicate analysis.
Such intricate analysis, which must involve the finding of facts, is not possible at the interim stage. As such, it is normally preferable that the court should maintain a pre-existing status quo, which does not favour one party over the other, in respect of the ultimate issue of relocation.
However, the court, at both the interim and final stage, must not lose sight of the fact that the best interests of any child affected are its paramount concern.
Both the father and mother approach the case ostensibly focused on [X], [Y], and [Z]'s best interests, but from different perspectives.
The mother justifies her decision to move with the children to Brisbane in December 2009 as follows:
“I realised at that point that if the boys and myself were ever to escape the cycle of violence we were suffering from at the hands of the husband, and if I was ever going to have any respect for myself, I needed to get out of the home. It was clear that the father was not going to leave the home, nor leave me alone. He would come and go as he pleased. I thus contacted family members in Brisbane to make sure accommodation could be provided for me and the boys, and I left the former matrimonial home with the boys in December 2009, moving to Brisbane.”[1]
[1] See mother’s affidavit filed 26 March 2010 at paragraph 30
The father's position is that the mother's move of the children to Brisbane will have irremediable consequences for the quality and nature of the children's relationship with him because of the distance involved between Brisbane and Adelaide and because the mother is likely to be resistant to him continuing his relationship with the children concerned. He puts it this way:
“I am concerned the mother's behaviour is impacting adversely on the children's emotional wellbeing. For instance, both [X] and [Y] have asked me, "Why don't you love us anymore?" and told me that the mother has told them this. I say that since the mother took the children to Queensland she has frequently refused to allow me telephone contact with them. In particular, the mother has regularly refused to answer her phone, turning her phone off for extended periods of time, or hung up on me.”[2]
[2] See father’s affidavit filed 2 March 2010 at paragraphs 49-50
Background
I turn now to the background of the matter and the relevant matters which bring the parties to this point. Although it is impossible to resolve many factual issues between the parties, it is possible to derive a basic chronology of their relationship.
The mother was born [in] 1975. The father was born [in] 1977.
The father joined [workplace omitted] in 1996. The parties met in Brisbane in either 2000 or 2001. [X] was born in Brisbane in September 2001.
The father [worked overseas] for six months in 2001. He was overseas when [X] was born. [Y] was also born in Brisbane [in] 2003. The family lived in Sydney for about two years, between late 2004 and late 2006.
The parties married in Brisbane [in] 2006. In 2006, the father was [working overseas] for about four months. This was prior to the family moving to Adelaide in late 2006. [Z] was born in Adelaide [in] 2006.
In early 2008, the father did two months of [occupation omitted] on the Gold Coast. He was [working overseas] for six months from mid to late 2008, returning to Adelaide midway through his [work] to spend some time with the mother and children.
The father concedes that the parties separated during the first half of 2008 but he asserts only temporarily. The mother says the separation was permanent, at least from her point of view.
The father attended a six-month training course in Brisbane between January 2009 and June 2009. He says during this period he stayed in regular contact with the mother and children.
The father says he left [occupation omitted] in July 2009 and joined [occupation omitted]. The mother is not sure about that date. Certainly, it is her case that she was not advised clearly of this eventuality. As a result, I am unclear about the parties' precise living arrangements from mid 2009 onwards. It is, however, clear that in the latter part of the year they were both occupying the former family home at [W].
This chronology is the background to the mother's assertion that the father has been largely absent from the children's day-to-day lives. The father contends otherwise, categorising himself as being an active presence in the children's lives. He has calculated he was away from the family for about 31 per cent of the time involved.
The mother acknowledges a history of psychiatric treatment, particularly for depression, for which she was prescribed Prozac. The father has provided a copy of a document entitled mental health plan for the mother, which is dated 25 November 2009.
The father categorises the mother's psychiatric issues as serious, culminating in a suicide attempt, in the presence of the children, which resulted in her hospitalisation in early November of 2009.
He is critical that the mother has not specifically deposed to this incident in her affidavit material, either to confirm or deny it. Accordingly, he asserts that by necessary implication the court must accept the gravamen of his evidence regarding the matter.
There is no dispute that in late 2009 the mother and children went to Queensland and have remained there in the period since.
The father asserts that it was his understanding that the trip to Queensland was to be for a nine-day holiday. The trip also coincided with what he categorises as a trial separation between the parties, during which he was to find alternative accommodation for himself, pending the children and mother's return to Adelaide and the [W] home.
The mother does not categorically refute the father's assertion regarding the ostensible reason for her going to Queensland with the children. Her evidence is not, in my view, particularly coherent in regards to the issue. She has deposed as follows:
“In respect to paragraph 13, wherein the father states it was agreed between myself and the father that I would have a nine-day holiday in Queensland, that is not true. Myself and the children fled the home in Adelaide in December 2009 as I could not tolerate being there any longer. It is correct I told the father I was coming to Queensland for a holiday, and on one level, that's all it was. On another level, I knew I could not return to Adelaide and the father's violent outbursts, for the benefit of myself and the children.”[3]
[3] See mother’s affidavit filed 26 March 2010 at paragraph 48
It is common ground between the parties that [Y] accidentally broke his arm in early January 2010. The father's position is that he was given to understand, by the mother, that [Y] could not travel for some time because he required follow-up treatment in Queensland.
This was the background to the older children being enrolled in schools in Brisbane. The mother and children are currently living in a house which has been provided to the mother by a family member which, on her case, provides comfortable and appropriate accommodation for herself and the children.
The father says he acquiesced to the children's school enrolments because he did not wish them to miss school. He travelled to Queensland in late January and early March to spend time with the children. More recently again, over the recent Easter period, I understand he visited the children once again.
The father deposes that the mother only specifically advised him of her intention to remain permanently with the children, in Brisbane, on 18 February 2010. Again, he is critical of the mother's affidavit material for not specifically dealing with this issue.
This is the background to his assertion that the mother has been disingenuous towards him in respect of her true plans, in order to enable her to embed the children in Brisbane, before he could organise any opposition to her plans.
The father, in support of his position, points to the fact that he did not delay unduly in bringing his application, when the full extent of the mother's position became known to him.
For her part, the mother asserts that the father was earlier aware of her position, as evidenced by his alleged proposal to her that he would move to Queensland and apply to [occupation omitted].
It is impossible, at this stage, for me to reconcile much of the parties' competing claims and assertions other than to point to what is self-apparent. The parties' relationship as parents and their ability to communicate effectively with one another is currently muddled and confused. Since at least December, their interactions with one another have been emotionally volatile.
Legal principles
I now turn to consider in more detail the legal principles applicable to the case. The service of [X], [Y], and [Z]'s best interests is the most important consideration in this case. [Family Law Act: section 60CA.].[4]
[4] Hereinafter, all references in [ ] are to the Family Law Act1975 (Cth)
The same principles apply at both the interim and the final stage, the distinction being that interim hearings do not determine long-term arrangements for the care of the child, whereas final proceedings do.
The aims and principles of the part of the Family Law Act [section 60B] which deals with children, emphasise the desirability of a child's parents being as closely involved as possible in their child's life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm or from being subjected to abuse, neglect or family violence.
The provisions in the Family Law Act relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents. The second is the need to protect children from physical and psychological harm as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary consideration in how a court determines what is in the child's best interests by section 60CC(2).
Other criteria relating to how a court is directed to consider how the best interests of the child may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
There is a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility for him or her. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spend with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
In the case of Goode & Goode[5], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[5] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
The current case throws up complex issues to do with relocation and family issues. These issues are difficult to resolve at the interim stage.
Essentially, it is the mother's case that she had no alternative, in fleeing a violent and abusive relationship, but to move to Brisbane. In addition, as the unequivocal primary carer of [X], [Y], and [Z], she asserts she should be entitled to live how and where she chooses with the children. It is also her case that if she is happy and well-settled in a residence of her choosing, this will benefit the children.
Allegations of family violence must be closely examined by the court, bearing in mind the serious consequences exposure to family violence may have for any child concerned.
Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child's parents are not appropriate psychological role models for children.[6]
[6] See in the marriage of Patsalou (1994) 18 Fam LR 426
The concept of family violence is specifically defined in the Family Law Act [section 4]. It means conduct, whether actual or threatened, by a person towards another or towards the property of a member of a person's family that causes that or any other member of the person's family reasonably to fear for or reasonably to be apprehensive about his or her wellbeing or safety.
Family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Obviously the latter behaviour is the more damaging so far as children are concerned.[7]
[7] See JG & BG (1994) 18 Fam LR 255 at 261
Again, these are factors which the court must bear in mind in examining issues of family violence, in the context of determining the best outcome for any child concerned. Not all incidents of family violence will be necessarily damaging to a child.
The fundamental task for the court is to assess prospective dangers for any child concerned, arising from the possibility of further exposure to family violence, rather than to punish a parent for past failings, particularly if that failing arose against a background of difficult circumstances or, indeed, as a result of provocation or incitement.
A significant element of the mother's case is that the father was controlling of the parties' finances. It is her case that this was a form of abuse visited on her by the father. Whether that is so or not I am not in a position to ascertain at this stage. In addition; it should be noted that the definition of family violence, contained in section 4 does not include specifically such financial control and, further, the definition concerned has an objective aspect to it.
Given the structure of Part VII of the Family Law Act, cases involving one parent wishing to move a major distance away from the other parent concerned raise significant issues for the court and the parties concerned. Such cases throw up competing principles which are difficult to reconcile.
On the one hand, one of the purposes of the Family Law legislation is to provide former partners with mechanisms to enable them to lead separate lives from one another in the future and make arrangements for the care of their children in the now changed circumstances, following the end of the marital or de facto relationship between them. There is no principle at law that requires separated parents to live indefinitely in close proximity to one another.
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of the child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned choose not to live together. It has been said that relocation cases need careful analysis, of the various issues involved, the pro’s and con’s from the child’s point of view of either relocating or remaining in the same location.[8]
[8] See AMS v AIF (199) FLC 92-852
Accordingly, it is usually considered preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocations may have potentially serious ramifications for the children concerned, especially when those children are young, in terms of their ongoing parental relationships.[9]
[9] See C& S [1998] FamCA 66
The provisions of the Family Law Amendment (Shared Parental Responsibilities)Act have added emphasis to the importance of a child maintaining a meaningful level of relationship with both of his or her parents.
However, they have not specifically prohibited the movement of a child away from one or other of his or her parents, or placed some specific evidentiary onus upon the parent wishing to relocate. If the legislature had intended to prohibit outright such relocations it would have specifically done so.
Rather, what the court is required to do is to weigh and balance the primary considerations and the additional considerations in respect of the parties' competing proposals to determine the best outcome for the children concerned.
However, given the more limited evidence usually available at the interim stage, the court must exercise considerable caution in respect of such relocation issues, when the evidence before it is necessarily provisional and untested.
Accordingly, the Full Court of the Family Court has indicated that issues relating to relocation should not be determined against a background of recent development which significantly alters the relationship of any child concerned in regards to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.[10]
[10] See C & S (supra)
I agree that, at the interim stage, the court must continue to exercise considerable caution about so-called unilateral relocation. The reasons for this are obvious. Parents should not be encouraged to feel that they can take things into their own hands, and in the heat and emotional disconnection of separation, make decisions which will serve their own ultimate long-term aims, but not necessarily the best interests of any child concerned.
In my view, as far as possible, unless there are significant issues to do with the welfare of a child, issues to do with relocation should be determined, as far as a possible, on a metaphorical level playing field, unaffected by the post separation actions of one parent who has moved.
In Morgan & Miles[11], Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“It is highly desirable that, except in cases of emergency, the arrangements which will be in the child's best interests should not be determined in an abridged interim hearing and these are the types of cases in which the child's present stability may be extremely relevant on an interim basis. It further appears to me that the comments of Warnick J in C & S remain apt and relevant to determination of these cases.”
[11] See Morgan & Miles [2007] FamCA 1230
The mother's case is that her situation in Adelaide was one categorised by such a level of emergency, particularly because of the father's controlling and domineering attitude towards her, which left her no alternative but to leave the city.
If I reach the conclusion that such a situation of emergency did not necessarily confront the mother, or her behaviour cannot be properly justified by any considerations relating to the children's best interests, it may be incumbent upon me to determine that the children should be returned from Brisbane to the locale in Adelaide from which they have been removed, it usually not being in a child's best interests, for long-term interests pertaining to that child, such as change in the child's living arrangements which make it significantly more difficult to spend time with a parent, being determined in a truncated or interim hearing.
Section 60CC considerations
I now turn to consider the matters set out in section 60CC. I cannot make a definitive finding at this stage that the father has inflicted family violence within the terms specified by section 4 on the mother or exposed the children to it.
However, in all the circumstances of this case I do not think the mother's only avenue of response was to move to Brisbane, understandable though this impulse was.
In addition, there seems to have been some ambivalence about the reason for the move and her intention when she left. Certainly she did not convey her intentions clearly to the father. As such, her decision does smack of being unilaterally made.
Accordingly, even if I was to accept the mother's case at its highest, which I cannot do, I do not think moving the children to Brisbane was a proportionate response to the risk of harm involved, either to the mother herself or to the children.
As such, I do not think it would constitute an unacceptable risk for either the children or the mother, if they return to live in Adelaide, pending the final hearing. The children can be safe and protected in Adelaide, particularly if the mother takes up the father's offer of sole occupancy of the former family home.
Given these findings regarding family violence, at this interim stage, I think I must give significant emphasis to the benefits the children are likely to derive from having a meaningful relationship with their father. This consideration dovetails with the additional consideration relating to the practical difficulty and expense of a child spending time with an absent parent.
It is difficult to see how, given the tender years of the children concerned, that they can have a meaningful relationship with the father, if he remains in Adelaide and they in Brisbane. In addition, the expense involved is likely to be prohibitive, particularly as [Z] needs to be accompanied on any flight between the two centres.
The difficulties implicit in these intertwined issues appear to me to be ones with which the court needs to grapple at a final hearing, rather than at the interim stage, when necessarily any orders made will have a provisional quality to them.
In addition, the possibility of the father moving closer to the mother's preferred locale is one more apposite for examination at the final stage. It being a possible outcome that the court may ultimately consider it oppressive for the father to restrain the mother indefinitely in Adelaide, a locale not to her liking, when it is open to him to move his place of residence and his employment to the mother's preferred locale.[12]
[12] See U & U (2002) FLC 93-112
However, these considerations are complex ones and again are issues more apposite for examination at the final stage, when all the evidence will be to hand, rather than at this interim one. In my view, considerations of this type militate in favour of the father's interim proposals being adopted.
Much controversy exists about the nature of the relationship the children have with their father. However, it seems clear that the mother has been the children's principal provider of care up to this stage.
Of itself, a parent's freedom of movement may have implications for the welfare of any child concerned, particularly if that parent has been principally responsible for the child who is subject to the relocation. For obvious reasons, a parent's ability to function effectively as a parent is likely to be important to the welfare of the child concerned.
It is often said to be axiomatic that a happy parent is likely to be a more competent parent. Essentially, if the court unduly interferes with the way of life which a “custodial” parent legitimately wishes to adopt, the resulting frustration and bitterness may adversely affect the child concerned.[13]
[13] See Fragomeli & Fragomeli (1983) FLC 92-393
However, I do not think it can be said that the children have no relationship whatsoever with the father. Clearly, the ongoing intimacy and strength of the children's paternal relationship must have implications for the best interests of the children concerned. In addition, on a final basis, it is the father's position that the children should live with their parents on a week about basis.
Again, it is my view that the balancing of these finely balanced considerations is more appropriately left to the final hearing stage, when the court can undertake a full examination of all the evidence involved, including the nature and potential of the children's relationship with their wider family, both paternal and maternal, in Adelaide in Brisbane respectively, and whether it is likely to be in the children's best interests for the legislatively mandated optimal outcome for the care of children - namely, an equal time arrangement - to be adopted.
The father is critical of the mother's willingness and ability to encourage the children to have a relationship with him, particularly in the event of the relationship being one characterised by distance. At first blush there seems some substance to his position, given the flavour of unilaterality which suffuses the mother's case. However, again, this is an issue, in my view, more amenable to examination at the final rather than the interim stage.
The children have been in Brisbane for one school term. Prior to that they have lived in Adelaide for a significant proportion - and in the case of [Z], all - of their lives.
If they return to Adelaide they will be returning to an environment with which they are comfortable and familiar. If the mother returns with them they will be able to see both parents regularly. Accordingly, the father's proposal, subject to the mother's response to it, does not constitute a momentous change of circumstances.
In any event, it would seem to me that over the past few months the children's circumstances, particularly in emotional terms, has been one of flux and uncertainty.
One of the most significant issues in this case turns on each of the parties' respective assessments of the other's parental capacity, particularly to provide for the children's ongoing emotional needs.
The father points to the mother's psychological health. The mother points to the father's controlling personality and his distance and coldness from the children concerned. I cannot resolve these issues in the context of this interim hearing. A family report is likely to throw some light on these matters.
In addition, in terms of the mother's psychological health, I have no detailed expert evidence in respect of this issue which, if the father's position is ultimately accepted, is likely to be central to the wellbeing of these three children.
Again, given the relevance of these considerations to the overall desirability of the relocation so far as the service of the children's best interests is concerned, it seems preferable that these issues be examined on a level playing field which has not been distorted by a development - the movement of the children to Brisbane - which was initiated by the mother alone.
This is a difficult case, particularly at the interim stage. I must be careful not to fashion an outcome which is likely to pre-empt the need for a final hearing, which is the appropriate forum at which the parties' competing claims and counterclaims can be properly examined and unravelled.
In my view, a consideration of the various factors arising under section 60CC favour the return of the children to Adelaide pending final hearing.
This is particularly so if the mother also elects to return to Adelaide, although it is not her ultimate wish. I do not think it can be said that the mother had no alternative other than to leave Adelaide. In addition, it is difficult for her to assert that she had the father's acquiescence, either actively or passively given, for the move.
In those circumstances, I do not think the determination of the relocation issue at the interim stage can be said to be in the children's best interests. The issues which each of the parties have raised need a more thorough and nuanced consideration.
In addition, given the overall structure of Part VII of the Act, particularly the objects and principles contained in section 60B, the court must be careful not to unwittingly condone unilateral parenting actions.
Given the troubled and muddled parenting relationship between the parties I do not think it appropriate to apply the presumption of equal shared parental responsibility at this interim stage. Accordingly, I need not consider the issues of equal time or substantial and significant time, and the question of the overall practicality of such outcomes in the circumstances of the case.
At this stage the best outcome for the children is if they continue to live predominantly with the mother, but in Adelaide as opposed to Brisbane. As I say, I have no power to compel the mother to live in Adelaide if she does not wish to do so.
However, the mother's discomfort at being in Adelaide, against her wishes, is likely to be ameliorated if she is able to have the security of sole occupancy of the former family home and a date is fixed for the ultimate hearing of her relocation application. Accordingly, if these things occur, it cannot be said that, following this interim hearing, she is indefinitely restrained in a location not of her choosing.
Given the controversy raised by these proceedings, I do not think the parties' parenting relationship, regardless of the presumption of equal shared parental responsibility, can currently sustain an equal time arrangement. The parties do not currently trust one another and there are obvious deficits in their facility to communicate with one another.
Although I cannot be sure for certain, it would seem to me that these proceedings up to this stage must necessarily have been bruising for each of the parties concerned. As I say, they have each launched concerted attacks on the bona fides, past background, and behaviour of the other.
However, notwithstanding these matters, as the mother has been the children's primary carer up to this stage it is logical that she should continue to provide the majority of their care if it is possible.
In these circumstances, the father's proposal that he spend time with the children, on alternate weekends and overnight in the other week appears appropriate to me to ensure that the children have a sufficient level of meaning in their relationship, both with their father and other members of their paternal family, pending the final outcome of the parties' respective applications. However, in the event that the mother elects not to return to Adelaide, the children should live with their father.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 7 April 2010
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