LEROY & LEROY

[2018] FCCA 3211

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEROY & LEROY [2018] FCCA 3211

Catchwords:
FAMILY LAW – Interim relocation – mother unilaterally relocated to Town A with the children from Sydney – father seeks the mother and children return to Sydney and proceedings be transferred to the Sydney registry – mother seeks permission to remain in Town A with the children on an interim and final basis.

Legislation:

Family Law Act 1975 (Cth), ss.(4)(1)(c), 61C, 60DA, 61DA(3), 121.

Cases cited:

Redmond & Redmond [2014] FamCAFC 155

Goode & Goode (2006) FLC 93-286

SS & AH [2010] FamCAFC 13

AMS v AIF (1999) 199 CLR 160

Reece & Reece [2011] FamCAFC 24

Deiter & Deiter [2011] FamCAFC 82

Morgan & Miles (2007) FLC 93-343

C & S [1998] FamCA 66

Browne & Keith [2015] FamCAFC 143

MRR v GR (2010) 240 CLR 461

Other:
Family Court of Australia and Federal Circuit Court of Australia, Family Violence Best Practice Principles, 4^th edition, December 2016
School of Law, The University of Queensland, National Domestic and Family Violence Bench Book (2018) <

Applicant: MS LEROY

Respondent: MR LEROY

File Number: AYC 319 of 2018

Judgment of: Judge Harland

Hearing date: 1 November 2018

Date of Last Submission: 1 November 2018

Delivered at: Melbourne

Delivered on: 8 November 2018

REPRESENTATION

Counsel for the Applicant: Mr Thompson

Solicitors for the Applicant: Binnie & Associates Lawyer

Counsel for the Respondent: Ms Burt

Solicitors for the Respondent: Broun Abrahams Burreket

ORDERS

1. The children [X] born 2009 and [Y] born 2012 (“the children”) live with the mother.

2. The mother and the children be permitted to remain in Town A pending the final hearing.

3. The father spend time with children as follows:

   (a)In Melbourne on Saturday 10 November 2018 from 10:00am to 4:00pm to be supervised;

   (b)In Melbourne on Saturday 17 November 2018 from 10:00am to 4:00pm with the first two hours to be supervised and the remaining hours to be unsupervised providing the children are not distressed;

   (c)In Melbourne from 10:00am to 4:00pm on Saturday 15 December with the first two hours to be supervised and the remaining hours to be unsupervised providing the children are not distressed;

   (d)In Melbourne from 10:00am to 4:00pm on Sunday 23 December and from 10:00am to 4:00pm on Monday 24 December;

   (e)Commencing 5 January 2019, each alternate weekend in Melbourne on Saturday from 10:00am to 4:00pm and Sunday from 10:00am to 4:00pm.

4. That 48 hours prior to each visit the father is to advise the mother of the accommodation where he will be staying.

5. Changeover is to occur in Melbourne, with the mother to deliver and collect the children from a handover location nominated by the mother and the mother to advise the father of the chosen location 24 hours prior to the visit, being a public place with a CCTV camera and being approximately 5 minutes’ walk of the father’s accommodation, other than a police station.

6. The father be permitted to communicate with the children by telephone, facetime or skype when the children are in the mother’s care and the mother shall facilitate such communication:

   (a)On Tuesday, Thursday and Sundays between 7:00pm and 8:00pm; and

   (b)At all other reasonable times.

7. That each parent notify the other not less than twenty-four (24) hours prior to a change in their landline or mobile telephone number and/or email address.

8. If there is any medical emergency involving the children or either of them, including but not limited to serious illness, accident or hospitalisation, the parent with the care of the children is to immediately contact the other parent as soon as practicable and provide the other parent with all documentation and information in their possession regarding the emergency.

9. The mother and father will inform the other of any medical treatment the children receive and the treating doctor as soon as practicable after the children or either of them have/has received the treatment and advise of any medication prescribed for the children from time to time and provide the medication and appropriate instructions for its administration prior to or at the time of any changeover.

10. Each parent is at liberty to obtain all relevant medical records and consult the children’s medical practitioners to obtain any information they require and these orders are sufficient authority for that purpose.

11. Both the mother and father are permitted to liaise directly with the children’s school, sporting, co-curricular and extra-curricular bodies to receive notices, information, newsletters, reports, photographs and any other necessary information about the children’s progress.

12. Without admitting the necessity for such an Order, each party is restrained from:

    (a)Denigrating the other parent or a person with whom the other parent has a relationship, in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with; and

    (b)Discussing any adult matters with the children, including the details of these proceedings, or allowing a third party to do so in their presence.

13. The mother be restrained by injunction from permitting the children to attend upon Dr S.

14. That the mother and father jointly agree on a clinical psychologist to be appointed to provide therapeutic support to the children and the parties will facilitate the children’s attendance on that person, and no other person without the parties’ joint written consent.

15. The parties are granted liberty to apply with respect to counselling in the event the parties are unable to agree on a clinical psychologist.

16. The father will be responsible for his travel and accommodation expenses to and from Melbourne to spend time with the children.

17. The mother will be responsible for the children’s travel expenses to and from Melbourne for the father to spend time with the children.

18. The mother will be responsible for her own travel costs to and from Melbourne associated with the father spending time with the children.

19. Each parent be at liberty to provide a copy of these orders to any third party necessary to ensure compliance with these orders.

20. Within 14 days, each party make a request for the disclosure of the documents from the other party, and the other party comply with that request within a further 14 days.

21. Unless the parties have confirmed in writing an agreement as to the market value of all properties in dispute, then the wife forthwith submit the names of three valuers in respect of the Victorian properties with the husband to pick one and the husband forthwith submit the names of three valuers in respect of the New South Wales properties with the wife to pick one with the costs of same to be borne equally by the parties and such valuation to be filed with the Court not later than 7 days prior to the conciliation conference.

22. Pursuant to Rule 10.05 of the Federal Circuit Court Rules 2001, the parties attend a Conciliation Conference with a Registrar of the Federal Circuit Court of Australia at the Melbourne Registry on 18 January 2019 at 2:15pm.

23. Unless otherwise exempted from payment, the Applicant must pay the Conciliation Conference fee of $380 in accordance with the Family Law (Fees) Regulation 2012 28 days prior to the Conciliation Conference.

24. Should the Applicant fail to comply with Order 22 herein the matter be listed for mention before the Court as soon as practical prior to the Conciliation Conference.

25. The parties’ solicitors (and if they are unrepresented, the parties themselves) send to the other, and the nominated organisation, at least 7 days before the Conciliation Conference, copies of:

    (a)an outline of case document in the form set out below in the trial directions;

    (b)a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;

    (c)a copy of the actual terms of orders required to give effect to their settlement proposal; and

    (d)written confirmation by each party or their solicitor that:

    i.all relevant documents have been exchanged between the parties; and

    ii.the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.

26. The mother, the father and the children [X] born 2009 and [Y] born 2012 attend upon the family report writer for the preparation of an updated private family report.

27. The cost of the private family report to be borne equally by the parties.

28. The family report deal with the following matters:

    (a)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;

    (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975;

    (c)any other matters that the family report writer considers important to the welfare or best interests of the children.

29. The mother and the father comply with all reasonable directions as to attendance upon the family report writer as and when required by the report writer.

30. Within seven days of being notified of the identity of the family report writer, the solicitor for each of the parents (or, if unrepresented, then the parent himself or herself) deliver or cause to be delivered to the family report writer copies of the following documents:

    (a)all relevant applications, responses and affidavits filed by that parent in these proceedings; and

    (b)any intervention or restraining orders currently in force.

31. The family report writer have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent.

32. If either parent requires the relevant family report writer to attend for cross examination at the final hearing, then that parent give the relevant family report writer seven (7) days notice in writing.

33. The applicant solicitor to file and serve the updated family report on or before 19 February 2019.

34. The matter be adjourned for final hearing on 5 March 2019 at 10:00am (with an estimated hearing time of four days).

35. The parties file and serve one affidavit of evidence in chief and one affidavit of each witness including expert witnesses, complying with r.15.28 of the Federal Circuit Court Rules 2001 and an updated financial statement upon which they intend to rely at trial on or before 5 February 2019.

36. Except as already provided by these orders, the parties shall not file any further affidavits, and may not rely upon any past affidavits without the leave of the court.

37. The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulations 2012.

38. At least 72 hours prior to the trial, each party provide to the other party and to the Associate to the Judge, a Case Outline document as follows:

    Parenting

    a)a list of the documents to be relied upon;

    b)a brief chronology;

    c)an outline of contentions with respect to:

    i.whether the presumption of equal shared parental responsibility applies (s.61DA),

    ii.the considerations relevant to equal time and substantial and significant time (s.65DAA);

    iii.each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);

    iv.other relevant considerations (including, ss.60CG, 61F, 65DAB, 65DAC, etc); and

    v.any other matters  relevant to the decision; and

    d)a statement of the precise orders sought

    Property

    a)a list of the documents to be relied upon;

    b)a brief chronology;

    c)a table listing all of the assets, liabilities and financial resources claimed to be part of the asset pool, with the values contended for by that party;

    d)the main contentions on disputes as to:

    i.what items are to be included in the pool; and

    ii.the value of each asset in the pool;

    e)a list of contributions claimed or contended for;

    f)a list of other factors relied upon (s.75(2) factors);

    g)the percentage adjustment contended for; and

    h)a statement of the precise orders sought.

39. Any party seeking to rely on an affidavit of an expert witness notify the expert of the trial listing at least twenty-one (21) days prior to trial and confirm with my chambers accordingly.

40. Each party provide a copy of their trial Affidavits to the expert witness at least seven (7) days prior to trial.

41. Any Subpoena material to be relied upon at the Trial must be made returnable at least (3) three days prior to the hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

AYC 319 of 2018

MS LEROY

Applicant

And

MR LEROY

Respondent

REASONS FOR JUDGMENT

1. The father seeks orders that the mother return to Sydney with the children pending the final hearing. The mother unilaterally relocated with the children to Town A where she has family. She seeks to be able to stay in Town A with the children on an interim and a final basis.

2. The parties were in a relationship for 18 months before they married on 2008.

3. They have two children, [X] born 2009, aged 9, and [Y] born 2012, aged 6.

4. At the first return date on 8 August 2018, the parties entered into interim consent orders providing for the father to spend supervised time with the children in Melbourne.  The parties consented to obtaining a private family report and have also obtained several other reports by their respective treating doctors and children’s psychologist. 

5. The lawyers for the parties also helpfully prepared case outlines in advance of the contested interim hearing and both Counsel made detailed helpful submissions. Both Counsel referred to several authorities.

Agreed facts

1. The parties agree that the children should live primarily with their mother.

2. The parties agree that there was an incident of family violence on 12 January 2018 but they disagree about the specifics of that incident and whether or not that was an isolated incident.

3. The father was arrested and charged on 6 February 2018. This is the date of separation.

4. The father was charged with four counts of assault, property damage and intimidation.  He pleaded guilty and was convicted and placed on an 18 month good behaviour bond.  There is an intervention order in favour of the children which will expire in March 2019.

5. The parties agree that the mother unilaterally relocated with the children to Town A in June or July 2018.

6. The father did not see the children between 6 February 2018 and 25 August 2018 after this Court made interim orders by consent for the father to have limited supervised time with the children in Town A.  There is a dispute between the parties as to the reason for this.  The mother says the father was disinterested in seeing the children.  The father says he made several requests through his lawyers and provided blood-alcohol tests as requested.

The issues I am asked to determine on an interim basis

1. The issues I must determine on an interim basis are as follows:

   a)Should there be an order for interim sole parental responsibility in favour of the mother?

   b)Should the mother and children be required to return to Sydney pending the final hearing?

   c)Should the matter be transferred to Sydney registry?

   d)Should Dr S continue as the children’s therapist?

   e)Should the father’s time progress to unsupervised time?  If so, should the time include overnights and should there be time in Sydney?

2. The mother’s Counsel handed up a list of issues to be addressed with respect what issues need to be addressed with respect to the mother’s proposed relocation to Town A.  I will not set them out.  They will be issues for the trial.

The mother’s case

1. The mother relies on the material listed in her case outline.

2. The mother’s case is that she and children should be permitted to permanently live in Town A. 

3. She seeks the following orders:

   a)an interim order permitting her children to stay in Town A pending final hearing;

   b)that the Orders made on 8 August 2018 for the father to have supervised time in Victoria continues;

   c)interim order for sole parental responsibility; and

   d)an order that Dr S continue as the children’s therapist.

4. She also alleges that the father was emotionally abusive to the children and treated the two children differently. The mother also makes complaints about the behaviour of the father’s sister and mother with respect to the children.

5. The mother says she has family support in Town A and the children settled in and are doing well with the assistance of Dr S.  She says the children describe the father as unpredictable, they are scared of him and they do not want to spend unsupervised time with him.

6. She refers to the assistance that her mother has provided which included providing accommodation and the support of family.  She also talks about cheaper rental expenses in Town A, although the financial aspects of the relocation with her return to Sydney is not an issue for the interim hearing given the father’s proposals.

7. She says she has no family supports in Sydney and does not want to live near the father and his family who she says she does not have a good relationship with.  She raises various historical issues with respect to this. This will need to be addressed at the final hearing.

8. The mother says in her affidavit that she is concerned about the children being forced to return to Sydney before they have received the “necessary professional counselling” given the “emotional and psychological abuse by the father” and she refers to Dr S’s comments with respect to [X] and her “apparent disorganised attachment with her father and her exposure to reported domestic violence.” Significantly, Dr S makes the comment about attachment in the circumstances where she has never spoken to the father and has never seen him with the children.

9. The mother is being treated for anxiety and depression. She relied on the affidavit of Dr I.

10. The mother seeks that the interim orders for the father spend supervised time with the children in Melbourne continue.

The father’s case

1. The father relied on material set out in his case outline.

2. The father’s case is that the mother unilaterally relocated to Town A with the children without just cause and that she and the children should return to Sydney pending the final hearing.  He expressed concern that if the mother does not return to Sydney pending final hearing, that her application to relocate will have effectively been determined on that basis although his Counsel did not express that in those terms.

3. The father further relied on the affidavit of Dr C, psychiatrist, who assessed the father for the criminal proceedings with respect to the assault and family violence offences.

4. The father says that the children have a close and loving relationship with him and he expresses concerns that he will not be able to rebuild his relationship with the children and have a meaningful relationship with them if they remain in Town A.

5. The father acknowledges that his time with the children needs to be graduated but seeks that his time immediately move to unsupervised.  He points to the positive interactions with the children observed by the supervisor.

6. His case is that the mother has exaggerated incidents and portrayed him as violent and controlling in order to gain an advantage in these proceedings.

1. He says the mother’s unilateral relocation, the enrolment of the children in school in Town A and the engagement of doctors and other professionals for the children in Town A, indicate her unwillingness and inability to encourage and facilitate his relationship with the children.

2. The father was critical of what is not included in the affidavit she relied on for the hearing, being any detailed discussion around the decision to move with the children to Town A and what conversations she has had with the children about that.

3. The father denies the mother’s allegations that he has minimised the violent incident. He accepts that his conduct was violent, abusive and frightening. He provides an explanation to put that incident in context and refers to both the affidavit of Dr C and [14] of the Family Report to support this.

4. The father says that there is no financial impediment to the mother returning to Sydney with the children pending final hearing, as the mother has three options for accommodation in Sydney being to either return to the former matrimonial home, to the apartment the father currently occupies and owns, or alternatively the mother could find accommodation.  He offers to provide financial assistance with respect to the costs for the children to return and also says that he has been providing significant financial support with respect to the mortgage and is also paying child support for the children.

5. The father says, in contrast, it is only sustainable for him to continue to travel to Melbourne each fortnight in order to spend time with the children and refers to the expenses he incurs in doing so which currently includes the cost of supervision.  He also says that to continue to only see the children in Melbourne will be a significant impediment to him resuming his close relationship with the children, as he does not have a home base in Melbourne and is limited to doing fun activities with the children and not being involved in other aspects of their day-to-day lives, such as attending their extracurricular activities and being involved in their schooling.

Contested issues of fact

1. One of the central issues in contention is the nature and extent of the family violence.

2. Flowing from this is the risk to the children and whether and how the father’s time should progress.

3. There is a dispute between the parties as to the level of the father’s involvement with the children prior to separation

4. The mother does not raise financial impediments as being a reason for not being able to return to Sydney. She does dispute the father’s claims with respect to financial hardship with respect to travel to Melbourne as he travels to Melbourne once a fortnight for work and his visits can coincide with that.  Whilst that reduces the father’s costs it does not eliminate the extra accommodation and other costs he incurs.

Family violence and the incident on 12 January 2018

1. In her affidavit sworn on 25 October 2018 and filed on 26 October 2018, the mother describes the relationship as being characterised by physical and emotional abuse by the father.  She refers to incidents where she says the father was controlling and which she says started within a few months of their relationship.

2. The mother says the father’s unpredictable and abusive behaviour escalated during the course of 2017 and accumulated in a family violence incident on 12 January 2018.  She describes that incident in some detail in her affidavit.  She reported the incident a week later and on 6 February 2018 the father was arrested and charged.  L 1 is the statement she gave to the police.

3. The mother describes the incident on 12 January 2018 at length.  She says that [Y] was jumping up and down on the couch and the father yelled at her.  [Y] ran off crying and slammed the bathroom door behind her.  The father took out a knife and opened the door with a knife when [Y] would not open the door.  [Y] complained that her father cut her with a knife but refused to show him.  She later showed her mother.

4. The mother says later that night the father started screaming at the children and at her.  He threw a chocolate brownie at her and when she picked it up, he grabbed it from her and crumbled it over her head into her hair.  She says the father grabbed her throat saying “it would be so easy” and “I’d rather go to prison for 10 years than kill you”.  The mother says she thinks he meant to say that he would go to prison for killing her.

5. The mother says she grabbed her phone and the father yelled at her asking if she was recording.  He grabbed her phone from her hand and smashed it several times against the wall, shattering it.  She says the father grabbed her around the throat and shoved her against the wall multiple times and was taunting her to hit him.  He then picked up the vacuum cleaner set down in the kitchen and snapped off the front lid as he opened it. He then grabbed the mother by the throat and he said “I could easily end it for you. Easily.  Do you want that?”

6. The mother says she went in to check on the girls and asked them if they were afraid.  The father continued to yell at her.  The father took a knife from the kitchen and yelled at the children to go to bed.  The children were in [Y]’s bed crying.

7. The father concedes that he engaged in violent and abusive conduct that night.  He disagrees with some of the details in mother’s version of events.

8. The father says he was cognitively impaired and does not have a clear memory of what happened.  He relies on the affidavit of Dr M, psychiatrist, who he has been seeing for treatment as well as the affidavit of Dr C, which he obtained for his criminal proceedings.

9. The father says he asked the mother to put the children to bed as it was late. She told him to do it. The mother held up her mobile phone. The father believed she was recording him. He grabbed and smashed the phone. He says the mother went to the cutlery drawer. He pushed her on her neck and took out a butter knife. He said he said: “if you want to kill me go for it. I could too. Maybe 10 years would be worth it.” He says he kicked the vacuum cleaner and a bit that was already broken fell off. He says he cleaned up the broken glass from the phone.

10. He says the mother came out of the children’s bedroom and they continued to argue. He says the incident occurred in the kitchen and lounge room. He says he did not go into the bedroom and threaten the mother with a knife. He says the children were in [Y]’s room the whole time with the door closed.

11. The father says this was an isolated incident as he was suffering withdrawals from his antidepressants and the side effects of medication which he had not previously taken. He explains the lead up to this event and the symptoms he suffered while on holiday in (country omitted) without his usual Paroxetine.   He says he went to a local chemist to see if he could get the same medication. He thought he was given that medication but it was actually Ritalin. He went back to the chemist after suffering various side effects and was given Valium.

12. The father’s Counsel referred to [16] of the mother’s statement to police where she says when the children asked what happened and why she was crying, that she told them that the father had smashed her phone and broken it, grabbed her throat to push her against the wall and that the father had threatened to kill her.  The father’s Counsel submitted that what the mother told the children has affected both Dr S and the family report writer’s recommendations and that therefore little weight can be placed on them.

13. The father also conceded that the children were in the house at the time and would have heard their parents arguing.  The mother says the children heard and saw most of it.  Whether or not the children witnessed the violence or not, does not lessen the seriousness of the children’s exposure to the violence which has traumatised them.  It is likely that the children heard much more than shouting, including the father smashing the mother’s phone.  It would have been a terrifying experience. Being exposed to family violence and the aftermath of it is just as damaging to children as being directly subjected to it. This is recognised by the definition of abuse in s.(4)(1)(c) which refers to serious psychological harm caused to a child by being subjected to, or exposed to, family violence. Once is enough to cause serious harm.

Parental responsibility

1. The mother seeks an interim order for sole parental responsibility. 

2. In his minute of orders sought, the father seeks an interim order for equal shared parental responsibility.  His Counsel modified that position and submitted it was not necessary or appropriate to make orders for interim sole parental responsibility.  She submitted that the mother acted as though she has sole parental responsibility as evidenced by the mother’s unilateral relocations, the arrangement for [X] to have an operation on 5 November 2018 and the children’s attendance on Dr S.

3. Counsel for the mother submitted that if the mother was granted interim sole parental responsibility, that would result in the mother continuing to make unilateral decisions as she has done since the parties separated such as about what doctors the children see, what schools they attend and she may even relocate again.

4. It is clear that the mother has made parental responsibility decisions without consulting the father. Section 61C of the Family Law Act reflects the position at law that each parent has parental responsibility for the children subject to court orders being made.  This is the case regardless of whether parents are together or separated.  It is not the same thing as equal shared parental responsibility.

5. Section 61DA addresses the presumption of equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence. The presumption may also be rebutted if the court is satisfied that it would not be in the children’s best interests for their parents to have equal shared parental responsibility. Section 61DA(3) provides that when making an interim order, the presumption applies unless the court considers it would not be appropriate for the presumption to be applied.

6. Making an order for either shared or sole parental responsibility on an interim basis does not fetter the court’s discretion when making final parental responsibility orders.   

7. As it is conceded that there was an incident of family violence of which the father has been convicted, the presumption does not apply that parties should share parental responsibility.  What is clear from the facts in this case is that the mother has made major decisions for the children without consulting the father.  In the circumstances, and bearing in mind that the trial will be expedited, I find it is not necessary to make an interim order with respect to parental responsibility.

The parties mental health

1. Both parties have mental health difficulties.  The family report writer describes the parents as being “psychologically vulnerable”.

2. Dr C describes the father’s version of the incident on 12 January 2018 and the lead up to it and opines that there was a causal relationship between the father’s mental illness and offences he committed. He referred to the side-effects of the withdrawal from the medication the father had been taking and the effects of the other medication.

3. Dr C then opined that the father suffers from a major depressive disorder of recent history and onset, a generalised anxiety disorder with a long history and alcohol use disorder.  He referred to the father presenting with a history of high levels of alcohol consumption, drinking in excess of eight standard drinks most nights of the week and that the father had used increasing amounts of alcohol to medicate his symptoms of anxiety and depression.

4. Dr M records that the father told him that he has abstained from alcohol and continues to do so. The father has engaged in significant supports as he indicated in his affidavit, however it is concerning that he has not engaged in assistance for his problematic alcohol use.

5. The father described a history of generalised anxiety symptoms with a strong familial genetic link to anxiety. Dr M diagnosed the father as having a major depressive episode in remission, alcohol use disorder in remission and chronic generalised anxiety disorder. He said that currently his anxiety is “at its baseline level of severity”. 

6. At [14] of his report, he opined that his anxiety does not affect his ability to meet his children’s needs.  If his anxiety became exacerbated, the father ceased treatment and he could become distracted, irritable and withdrawn which could impact on his ability to be perceptive flexible and responsive to the children.

7. It occurs to me that these descriptions are consistent with the descriptions that the children give of the father being loving at times and volatile and unpredictable at others.  No doubt these are issues that will be examined and tested at the final hearing.  I cannot make any findings of contested fact at this interim hearing.

8. The father is also seeing a psychologist for ongoing therapeutic assistance.

9. The mother relied on the affidavit of Dr I, psychiatrist, who carried out the assessment of the mother.  He refers to history that the mother provided including the allegations of the father’s verbal abuse and the incident on 12 January 2018.  She refers to feeling very depressed and stressed and not feeling safe.  She referred to the father’s parents frequently attending the former matrimonial home uninvited. She says since being in Town A for the last few weeks, she felt a little better and she has family support.  She told Dr I that since moving to Town A, she has felt better in herself and she had been able to attend to normal household activities and looking after the children.  She described feeling depressed during the last 18 months.  She referred to having three friends in Sydney who also had children at the children’s school but that she was unable to get much support because they were busy with their own children and that since relocating to Town A and having the support of her family she feels much less alone and hopeless.

10. The mother expressed worries about having to return to Sydney and, whilst she would not return to live with her husband, she said just the thought of being in the same city and possibly running into him and having no support made her feel anxious.  She had been seeing a counsellor in Sydney prior to the move.

11. He opined that she has been suffering from a major depressive illness which has partially resolved and generalised anxiety. He goes on to make comments on the mother’s disclosures of family violence. The extent of the family violence, the risks associated with it, the impact on the mother and the impact on the children are all issues which will be explored at trial.

Dr S

1. The children have been seeing Dr S for counselling. She has filed three affidavits.

2. It is not uncommon for one parent to organise counselling for the children without knowledge and consent of the other parent after separation, particularly where there has been family violence.  The children receiving counselling in and of itself is not necessarily problematic. It is problematic when that professional becomes an advocate for a party.

3. There can be a real tension for parents and lawyers between gathering forensic evidence for the proceedings and seeking counselling assistance.  It is not uncommon in these types of matters for solicitors to seek reports from their client’s treating doctors. It is also not uncommon for a party to only have a short history of seeing that doctor after separation.

4. Problems can occur when the lines become blurred and the doctors’ comments on things that are outside their remit.

5. There are concerns about this with respect to the reports filed on behalf of both parties but particularly with respect to Dr S.

6. The father’s Counsel pointed to the affidavit of non-filing of the dispute resolution certificate and the comments attributed to Dr S. The mother’s solicitor swore this affidavit and says that Dr S rang him and asked him to help the mother as she was concerned that the mother may be forced to return to Sydney with the children. She was concerned that that would have a negative effect on the mother and children.

7. It is also highly concerning that the mother’s solicitor provided the family report to Dr S and asked her to comment on it. Leave was not sought by the mother’s solicitor to do so. The fact that the report was obtained by the parties and not court funded does not change the nature of the report and does not make the provisions in s.121 of the Family Law Act 1975 (“Family Law Act”) and the importance of confidentiality of these documents any less applicable.

8. The family report writer recommends that, provided the supervised visits are positive, unsupervised time commence immediately.  She also recommends that the father’s time only takes place in Melbourne for 6 months and that introduction of time in NSW should occur in consultation with Dr S.  Dr S disagrees with the recommendations that there be unsupervised time.

9. I do not place any weight on the affidavit of Dr S filed on 29 October 2018. Rather, that affidavit provides strong support for Dr S not continuing to be children’s counsellor. She has expressed opinion (and I acknowledge she was asked to) with respect to matters that are well outside her domain. She has become an advocate for the mother.

10. I accept that the children need counselling. The father also seeks that that occur but seeks that the parties jointly appoint a counsellor. I have real concerns about the parties’ current capacity to do this. It will be important that the children engage in therapy with someone who speaks to both parents and involves them in that therapy as may be appropriate.

Supervised time

1. Ms M from the Family Contact Service swore an affidavit on 25 October 2018 annexing the observations notes of Ms S who supervised 5 sessions between the father and the children.

2. The mother makes comments about the children’s supervised time with the father. Her comments about the father ending visits early are not consistent with the supervisors’ records.

3. He also refers to the mother’s evidence about the supervised visits and the consistencies with the supervisor’s observations which record that the father did not end any visits early and does not refer to [X] having diarrhoea during the visit.

4. The father emphasises the fact that the children do not show fear of him at the supervised visits and the visits have been very positive.  The supervisor observed the children and the father engaging very well together and the father showing empathy and child focus.

5. The father also refers to [20] of his affidavit where he and his parents attended [Y]’s first day of school and annexes happy photographs of him, his parents and the children. A photo captures an instance in time. The fact that the mother did not leave with the children straight after the incident and the fact that the children appeared happy at [Y]’s first day of school, does little to negate the mother’s contentions that the children are fearful of the father and anxious about spending time with him. People’s reactions to trauma and love for a parent who has also scared them does not mean there is only one reaction or that they should only react in a particular way.

6. The observations of the contact supervisor do not negate this. I accept that the children have enjoyed their time with their father and have expressed wanting to spend more time with him and that they miss him. It does not automatically follow that the mother’s allegations about the children being anxious are not also true. These are all issues which need to be tested at a final hearing.

7. It may well be that the children express some anxiety to their mother about seeing the father, whilst still clearly enjoying their time with the father. These issues are complex. The children have experienced trauma. They have been exposed to at least one serious incident of family violence. They have witnessed the impact on their mother.  They cannot help but be aware of the impact on her as they rely on her for their care.

1. There is some evidence to support the father’s concerns that the children have been exposed to adult issues and issues about the court proceedings in the mother’s care whether by inadvertently overhearing conversations or otherwise. The father seeks injunctions in this regard. Commonly parties seek mutual injunctions restraining the parties from discussing the proceedings with the children. It is unrealistic to expect that children will have no knowledge of the proceedings when they are involved in court assessments and that they will not ask any questions. The concern is to ensure that they are given information that is appropriate for their age and that they are not drawn into the adult issues. The Court’s website has useful information and guidance about talking to children in different age groups about these issues.

The Family Report

1. The parties attended a Family Report with Ms B on 14 September 2018.

2. The family report writer records at [6] that the parties had very different descriptions of their marriage.

3. With respect to Dr S, Ms B makes the following observation about Dr S [27]:

   27. In June 2018, Ms Leroy engaged the children in counselling with Dr S, Clinical Psychologist. Dr S continues to see the children, separately and together and she has observed them in the presence of the mother. It is noted that Dr S has not engaged with Mr Leroy. Dr S commented upon her appraisal of the truthfulness of the children’s engagement, and she expressed confidence that neither child has been coached by the mother to make incongruent reports about the father.

4. The mother’s counsel drew attention to [48] – [50]:

   48. [X] and [Y] remembered an occasion where they reported feeling “scared… frightened… Dad hurt Mum and he put her head onto the wall… he broke the vacuum cleaner and her phone.” The children were unsure whether this was a direct or indirect memory, but they were confident that “it made Mum sad… scared.” [X] was confident that she remembered an occasion when “Dad crunched up a brownie in Mum’s hair.” [X] shared “Dad calls me the good child and [Y] evil.” They spoke of their discomfort when “he pulls our pants down… we say stop it but he doesn’t stop… he laughs because he thinks it’s funny.” In general the children considered their father to be “A good Dad… when he’s happy he’s good.” At other times though, the children shared “He’s naughty to [Y] … but not to [X] … (and) …sometimes he’s really mean to [Y].” The children informed “It makes us confused. Don’t know why is he doing it.”

   49. [X] and [Y] spoke positively of their experience of their mother “she is loving and kind and we love her.” Living in Town A with Ms Leroy was a positive experience for [X] and [Y] “we are happy in Town A… with Granny… she is nice and she doesn’t get cranky.”

   50. The children were cautious about the resumption of unsupervised time with their father. [X] and [Y] spoke positively of their experience of supervision “We like Dr S… we like our supervisor.” [X] expressed a preference for ongoing supervision “Until Dad shows he can be nicer more of the time.” [X] spoke of feeling “anxious” if unsupervised time commenced. [X] was aware that she suffered with anxiety, which she attributed to her experience of family conflict “I’m older and more scared because I know what happened and I get anxiety… I know my anxiety gets worse when Mum and Dad fight.” [X] was reluctant to resume time with Mr Leroy in NSW “If we go to Sydney I don’t want overnight for six in ten nights or I think I will be scared.” [X] confirmed that she attends counselling support privately and at school to assist her manage her anxiety in relation to spending time with the father. [X] anticipated continuing to access counselling support.

5. [47] is also useful to set out:

   47. [X] and [Y] were observed to be mildly anxious at the assessment interview. They were polite and friendly, but did not engage at length about their experience of family life. The children preferred to be seen together. They spoke of their father in fond and familiar terms and referred to him as “Mr Mean, Mr Silly and Mr Loving.” [Y] referred to her father as “Mr Funny… because Dad called me names.” The children expanded upon their references to their father and it seemed that their experience of Mr Leroy was one of unpredictability and uncertainty. They experienced their father as having different characters ranging from loving to volatile.

6. Significantly, the report writer records at [32] that the father spoke positively about the mother’s parenting except for her decision to relocate and was not concerned about the children’s safety in her care. She went on to say that whilst the father expressed remorse about the violent incident in January 2018:

   32. … Mr Leroy did not impress as being cognisant of the impact of his conduct on Ms Leroy and / or the children. Rather, he focussed on his own loss of an intact family and his diminished involvement with the children. Mr Leroy did not appear to believe that the incident of violence in January 2018 was sufficient reason for Ms Leroy to flee NSW with the children. Mr Leroy minimised the incident by attributing blame to impaired cognitive functioning “I lost my ability to access my cognitive brain… to understand and stop what I was doing… I lost the capacity to understand right from wrong.” Further, Mr Leroy dismissed a diagnosis of alcohol abuse disorder, and maintained that he has significantly modified his drinking behaviour. In contrast to the mother’s portrayal of him, Mr Leroy maintained that he has not acted abusively in the marriage towards Ms Leroy or [Y]. Mr Leroy pondered “I think looking I could have regulated myself better and been a better father.” He cautioned, however, “I do not think Ms Leroy is lying… but don’t believe everything she tells you.”

7. The family report writer made the following observations about the mother at [38]:

   38. Ms Leroy (aged 44 years) presented as a friendly and engaging woman with an anxious demeanour. She engaged well at interview. Ms Leroy impressed as a loving parent and she spoke of the children in familiar and knowledgeable terms. Ms Leroy acknowledged a mutual and loving relationship between the children and their father “the children love their Dad and he loves them.” She also stressed, “they are also scared of him… they want him to be a good, kind Dad… but they never know when he is going to become angry and make hurtful comments.” Ms Leroy described the father as forming “A closer relationship with [X] … he doesn’t connect with [Y] … her personality and his personality clashed… he had no patience with her.”  Ms Leroy acknowledged the importance of the children continuing to enjoy a meaningful relationship with him. Ms Leroy was concerned, however, about their security and development and wanted to prioritise their emotional and physical safety and wellbeing. Ms Leroy sought to progress time with Ms Leroy at a pace that the children would manage and embrace.

8. I have concerns about the family report writer’s recommendations that the introduction of time in NSW “should commence in consultation with Dr S and with her approval.” This is likely to be unworkable, even if there were not the particular problems with Dr S’s involvement, and would lead to further conflict between the parties. It is also problematic to essentially abrogate the decision making function to a psychologist.

9. With respect to the treatment of the family report at an interim hearing, I refer to the comments in Reece & Reece [2011] FamCAFC 24 at [76]

   76.    While a judicial officer does therefore need to be cautious in relation to the use of contested evidence at an interim hearing and making findings on contested issues, in this case I consider that there is merit in the wife’s complaint regarding the Federal Magistrate’s failure to have regard to the report of Dr N.  Although the family report was clearly in dispute and would be the subject of cross-examination at trial, the report and Dr N’s recommendations should nonetheless have been considered by the Federal Magistrate at the interim hearing.  Dr N is a qualified clinical psychologist and had been tasked with preparing a family report in this matter.  She had conducted interviews with the wife, the husband, the two children and the wife’s partner Mr Q, and had observed interactions between the husband and the children, the wife and the children and also the wife with M and Mr Q.  Although the report could not be tested at an interim hearing, I consider that the Federal Magistrate fell into appealable error by failing to have regard to this report and the observations and recommendations of Dr N.

10. I accept that the family report is untested and that the father will challenge many aspects of it at the final hearing, including the recommendations. That does not mean I can ignore the comments of the children to the family report writer and ignore the report altogether at this interim stage.

Legal principles

1. The best interests of the children are the paramount consideration in interim and final parenting hearings.

2. When determining issues with respect to family violence, reference should be had to the Family Violence Best Practice Principles 4^th edition[1] and that National Domestic and Family Violence Bench Book[2].

   [1] Family Court of Australia and Federal Circuit Court of Australia, Family Violence Best Practice Principles, 4^th edition, December 2016

   [2] School of Law, The University of Queensland, National Domestic and Family Violence Bench Book (2018) <>

   Several authorities have commented on the truncated nature of interim hearings. For example in Redmond & Redmond [2014] FamCAFC 155 the Full Court said the following at [21] – [23]:

   21.    Before dealing specifically with each of these grounds we observe that permeating several of them as they were argued by the father – both in his summary of argument and his oral argument on the appeal (particularly grounds 1, 2, 4 and 7) – there appeared to be misapprehension by the father as to the place of disputed issues of fact as between the parties which remained untested on an interim hearing. In purported reliance upon Goode & Goode (2006) FLC 93-286 the father’s arguments seemed to proceed on the footing that the trial judge ought to have ignored or disregarded any allegations of fact which were adverse to the father by reason of his disputing them and which could not be determined in an interim hearing.

   22.    This approach overlooks two important things. First is the distinction between, on the one hand, the acknowledged limitations in an interim hearing to determine disputed issues of fact on untested evidence and, on the other, the need for the court to consider, particularly when the subject facts or allegations are centrally important to a child’s welfare, the risks to that welfare if those facts or allegations are ultimately established at a trial. Second, the fact that an issue or allegation of fact is disputed does not sit in isolation. Consideration of other evidence, including independent expert evidence, may weigh in the court’s consideration as to probabilities, one way or the other, of an allegation ultimately being established, or rejected, at a trial.

   23.    In SS & AH [2010] FamCAFC 13 Boland and Thackray JJ said at [99]-[100]:

   99.    We also should keep in mind what Kirby J said in AMS v AIF (1999) 199 CLR 160 at 211:

   [A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. 

   100.  The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested.  Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.  Interim relocation decisions

3. Both counsel relied on Morgan & Miles (2007) FLC 93-343 and drew particular attention to the guidelines referred to by Boland J at [82] to [88] and the use of guidelines.

4. At [88] Boland J said that particularly in relocation cases given the nature of the issues it is highly desirable that except in cases of emergency, arrangements should not be determined in abridged interim matters. She also referred to Warnick J’s comments in C & S [1998] FamCA 66.

5. The father’s Counsel referred to the Full Court decision of Browne & Keith [2015] FamCAFC 142 and the comments about what is an emergency. She submitted that given the mother did not move for three months, the circumstances could not be elevated to an emergency. This appears to be based on a misreading of what the Full Court said in this regard. I refer to [28] and [29]:

   28. His Honour, after finding that the mother’s decision to move to Western Australia with the child was unilateral, set out extracts from the authorities relevant to the issue and then said:

   112. … The case law suggests the Court should not readily grant interim relocations where there has been a unilateral relocation except in cases of emergency. This is not a matter where there is an emergency.

   29. It first needs to be said that nothing in the authorities quoted by his Honour gave support for this novel statement of the law, nor, so far as we are aware does it exist in any other authority.   Thus, his Honour was wrong; that is not the law.  Indeed, the law is as espoused by the High Court in MRR v GR (2010) 240 CLR 461, but his Honour failed to refer to that decision in his discussion of the relevant law.

6. The mother’s Counsel referred to [62] and [63] of Deiter & Deiter [2011] FamCAFC 82 where the Court observed that interim hearings are truncated proceedings and the Court has to be cautious about being drawn into contentious trial issues. The Court looks to less contentious matters such as agreed facts, care arrangements prior to separation, the current circumstances of the parties and the children, and the parties’ respective proposals.

7. I also observe the comments of the Full Court at [110] to [113]:

   110. We accept that in preparing her checklist, Boland J was attempting to provide guidance for parties and practitioners involved in relocation disputes.  However, one difficulty in creating a “checklist”, is that a gloss will be added to a statute that is already overly complicated.  A further concern is that judicial officers will begin to apply the checklist, rather than the legislation, thereby overlooking the nuances contained in the statute. 

   111. Subdivision E of Division 1 of Part VII of the Act lays down the requirements for parties to make a genuine attempt to resolve disputes by using family dispute resolution services before instituting proceedings.  There are, however, clearly stated exceptions to that requirement (which Boland J attempted to capture by use of the expression, “unless an exclusionary circumstance applies”).  Kaeser AM did not in his reasons specifically address the question of whether such circumstances applied here. 

   112. The legislation clearly recognises, in s 60I(9), that where there are reasonable grounds to believe that there has been family violence or there is a risk of family violence, there is no obligation to make a genuine attempt to resolve matters before instituting proceedings.  Kaeser AM, when addressing the application of the presumption of equal shared parental responsibility, properly found there had been “family violence”.  In those circumstances we see little utility in his Honour having referred in his reasons to the absence of a genuine attempt by the parties to resolve their dispute.

   113. In our view it is important that victims of family violence understand they will not be criticised for failing to seek to resolve disputes they may have with the person who perpetrated the violence.  Such attempts to resolve issues could place the victim at further risk, or result in outcomes that are not in the best interests of children. 

Conclusion

1. The Court does not condone unilateral relocations. The observations of Boland J in Morgan & Miles, especially at [88], are important. Nonetheless the court must determine what is in the children’s best interests in all of the circumstances of the case.

2. The task of the court and an interim stage is a delicate one. I must ask what if the allegations are made out, and what if they are not?  What are the risks? The father acknowledged that the children have been exposed to a serious incident of family violence on 12 January 2018 which has had an enormous impact on the children and both parents.

3. On a long term basis alternative weekend contact in Melbourne is unlikely to be sustainable whilst the father remains living in Sydney, but the final hearing id four months away.

4. What I cannot determine on an interim basis is whether or not this was the only incident, as the father states, or whether this was the worst in a series of escalating incidents and that there was a pattern of emotionally abusive and controlling behaviour throughout the parties’ relationships.

5. It is significant that the father concedes that the children should live primarily with their mother. It is of concern that in his original minute of orders submitted with his case outline he sought a recovery order if the mother did not return the children to Sydney and that the children live with him. That would have been incredibly distressing for the children.

6. If the mother were to return to Sydney with the children, then under the father’s proposal he would be seeing the children in a graduated regime leading to alternate weekends. 

7. The father’s Counsel submitted that if the mother is allowed to stay in Town A with the children pending the final hearing, that will negatively impact on the ability of the father to rebuild his relationship with the children and it will be naive to think that they will not be allowed to stay in Town A on a final basis. Whilst I accept that the distance between the parties makes this more difficult, I reject the second part of the submission. Whilst the father may well feel that that the final outcome is a foregone conclusion that is far from true. If that were the case, then interim orders would predetermine many final hearings.

8. In this case it is conceded that the mother unilaterally relocated with the children.

9. The pros and cons of the mother’s relocation will be fully explored at the final hearing. The mother’s Counsel identified many of the issues to be determined at the hearing.  These will include the viability of the father moving to Town A or Melbourne and the mother and children returning to Sydney with the children. There will be issues about the mother’s willingness and ability to facilitate the father’s relationship with the children and the practical difficulty and expense in doing so. Property proceedings are also on foot but understandably the financial aspect of the proceedings have received little attention thus far.

10. When I made enquiries as to whether this matter could be heard in Sydney, the father’s instructor indicated she had had some matters recently listed in April and May 2019 but that it would depend on whose docket. I have no reason to doubt this information but my enquiries with the Sydney case management judge is not so optimistic. As I indicated during the hearing, I have had a final hearing fall out of my list in March 2019 and am prepared to expedite this matter particularly considering the amount of material the parties have already gathered, including a private family report. With the court resources stretched as they are, it would not have been possible to obtain a court ordered report within that time frame.

1. I have some concerns about how the parties will manage handovers between the children. Neither have provided the court with a firm proposal. I am, however, satisfied that the father’s time should progress to supervised time before the final hearing.  I will order that there be a transition where the next visit is fully supervised and the next two visits the first two hours are supervised. The purpose of this is to ease the children into it and to give the mother some assurance. I have no doubt that the supervisor will let the mother know how the children cope when she leaves.

2. I am concerned that the parties do not have a firm location for handover when the father’s time moves to unsupervised time. I note that the mother wants the time to remain supervised. That is not supported by the family report writer and I note that the observations from the supervisor are positive, particularly with respect to how the father handled [X] having an anxiety attack.

3. I am not satisfied that it would be in the best interests of the children to have overnight time at this stage. Nor is it in their interests to travel to NSW. I acknowledge that this places significant limits on the father’ time with the children and means they will not see their extended paternal family for the next several months unless they travel to Melbourne. 

4. The allegations with respect to the nature and extent of family violence during the parties’ relationship will need to be explored at final hearing. I cannot ignore the allegations. Whilst the father’s face to face time with the children pending the final hearing or further order is restrictive, he will still be able to maintain his relationship with the children without putting them under too much pressure by requiring them to travel to NSW and the spend overnights with him. Given that I am only ordering day visits it makes sense that those continue to be in Melbourne unless the parties agree otherwise via their lawyers.

5. Given the funds the parties have expended on a private family report and other expert reports, I will order that the parties attend a conciliation conference rather than private mediation.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 8 November 2018