Leslie and Alexander

FEDERAL CIRCUIT COURT OF AUSTRALIA

LESLIE & ALEXANDER

[2017] FCCA 337

Catchwords:
FAMILY LAW – Interim application for parenting orders – unilateral interstate relocation of child aged 8 years – child relocated as a consequence of alleged disclosures of abuse – child retained by father following agreed holiday period with mother spent in South Australia – child not returned as scheduled but taken to Tasmania – mother undisputed primary carer for at least previous three years – mother alleged she fled a violent relationship with father in 2013 – father alleges mother is poor and neglectful parent with drug and alcohol issues – father further alleges mother’s partner has exposed child to family violence – nature of interim hearing – assessment of risk – is risk unacceptable – where should allegations be investigated – best interests.

Legislation:

Family Law Act 1975, ss.4(1), 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 67Z, 67ZBA

Cases cited:
Deiter & Deiter [2011] FamCAFC 82
SS v AH [2010] FamCAFC 13]
Eaby & Speelman (2015) FLC 93-654
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
Slater & Light [2013] FamCAFC 4
W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
C & S [1998] FamCA 66
Morgan & Miles (2007) FamCA 1230

Applicant:

MS LESLIE

Respondent:

MR ALEXANDER

File Number:

ADC 123 of 2017

Judgment of:

Judge Brown

Hearing date:

15 February 2017

Date of Last Submission:

15 February 2017

Delivered at:

Adelaide

Delivered on:

28 February 2017

REPRESENTATION

Counsel for the Applicant:

Ms Smith

Solicitors for the Applicant:

Legal Services Commission Whyalla

Counsel for the Respondent:

Ms Read

Solicitors for the Respondent:

The Family Law Project

ORDERS

The father return the child of the relationship X born (omitted) 2008 (hereinafter referred to as “the child”) to the mother, in (omitted), in the State of South Australia, at his own expense, no later than 7:00pm on Sunday, 5 March 2017, including the expense of the child being accompanied by an adult.
In order to give effect to order (1) hereof, the father or his agent deliver the child to the mother at a location, in (omitted), to be agreed between the parties and failing agreement to be at the foyer area of the (omitted) Police Station.
If the father fails to comply with order (1) hereof, a Recovery order do issue forthwith in the following form:
“A Recovery Order do issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
a)find and recover the said child X born (omitted) 2008;
b)to deliver the said child to the mother at such place as the officers giving effect to the Recovery Order may agree; and
c)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child/children may be found.”

UNTIL FURTHER OR OTHER ORDER

The said child live with the mother.
The father spend time with the child, during the forthcoming end of term one/Easter South Australian school holidays, provided the time takes place in (omitted), South Australia and at the father’s expense from 3:30pm on Saturday, 15 April 2017 until 3.30pm on Friday, 21 April 2017.
In order to give effect to order (5) hereof the child be exchanged between the parties at a location to be agreed between them and failing agreement to be the (omitted) Police Station.
The father have telephone communication with the child at times to be agreed between the parties and failing agreement to be at 6.00 pm Australian Central Time each Tuesday and Friday with the father to initiate the call to a telephone number provided by the mother.
The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence of the child or from permitting any other person to do so.
The parties be restrained and an injunction is hereby granted restraining them from discussing the proceedings in the presence of the child or from permitting any other person to do so.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit 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 5 May 2017.
The family assessment to deal with the following matters:
(a)to include interviews with the parties, the child and relevant family members;
(b)observed interaction between the child and the parties;
(c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;
(e)any other matters that the family assessor considers important to the welfare or best interests of the said child.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference
NOTING:
A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
C.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
That further consideration of this matter is adjourned to 19 May 2017 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 123 of 2017

MS LESLIE

Applicant

And

MR ALEXANDER

Respondent

REASONS FOR JUDGMENT

Introduction

This is an urgent parenting interim application, concerning the unilateral relocation of eight year old X from (omitted), South Australia to (omitted), Tasmania. The parties to the case are X’s mother, Ms Leslie and her father, Mr Alexander.
Ms Leslie, the applicant, seeks the immediate return of X to her care in (omitted), on the basis that she has provided the vast majority of X’s care, since she was born and her relationship with her father is not a secure one. She asserts that Mr Alexander has failed to abide by an agreement that X would be returned to her care shortly after Christmas last year.
Mr Alexander seeks to retain X in his care in (omitted) on the basis that it would represent an extreme threat to X’s psychological health and general wellbeing if she is returned to what he categorises as the mother’s unsafe home, which is characterised by family violence and drug taking. He asserts that the extent of the risk to X, in her mother’s household, justified him in taking the extreme step of removing the child, both from the mother’s care and the state in which she had lived for a significant period of time.
The parties met in (omitted) at some time in 2007. At the time Ms Leslie was working as a (occupation omitted), whilst Mr Alexander was a fly in/fly out (occupation omitted) for a company which (omitted) throughout Australia. He was retained to work at the (omitted), in (omitted). They met at the (omitted) where Ms Leslie worked.
X was born on (omitted) 2008, in (omitted). When the parties met, Ms Leslie had an older child, A then aged eight, from an earlier relationship. Ms Leslie also has two other children, now adult, who lived for much of their childhood with their father, a Mr C. Mr Alexander makes something of this. However, it must be the case that he knows nothing of Ms Leslie’s relationship with Mr C from his own direct knowledge.
It is Ms Leslie’s position that she and the father have never lived together for any significant periods of time. She does however concede that she, X and A moved to Tasmania for a number of years. During this period, Mr Alexander travelled a great deal for his work. However, it is her case that she and the two children returned to (omitted) in December of 2013.
It is the father’s position that the parties lived together, with the two children, in Tasmania for approximately four or five years. However, he concedes that the parties separated, approximately three years ago, when Ms Leslie and the children returned to (omitted). He has continued to live in Tasmania and, since 2013, to utilise his words, has “spent as much time as possible with X [the extent of which] has largely been dependant on my finances.”[1]
[1] See father’s affidavit filed 6 February 2017 at paragraph 23
Against this background, Mr Alexander asserts that he has travelled to (omitted) every three or four months and spent extended periods of time with X. The mother does not entirely agree. It is her case that she and X and A were forced to flee Tasmania in late 2013 because she (Ms Leslie) had been the victim of a serious episode of family violence precipitated by Mr Alexander. Thereafter, Ms Leslie asserts that Mr Alexander has spent some limited time with X at Christmas time 2015 and more recently again over Christmas in December 2016.
What is clear is that the father and mother arranged for X to spend time with her father between 21 and 28 December 2016, whilst Mr Alexander was in (omitted). At the time he had accommodation at the (omitted). The arrangement was negotiated between the parties via Ms Leslie’s mother, as the parties themselves do not communicate with any degree of normality.
Shortly prior to this agreement being reached, Ms Leslie was delivered of another child, X, born (omitted) 2016. X was born by caesarean section, which required Ms Leslie to stay in hospital for six days. She was discharged from hospital on 21 December 2016. X’s father, is Mr D.
Mr Alexander concedes that he did not return X to Ms Leslie’s care as had been agreed. It is his position that he elected not to do so because of disclosures made to him by X, which included that she (X) had been assaulted by Mr D. In addition, Mr Alexander formed the view that X had been exposed to family violence which had occurred between her mother and Mr D.
Mr Alexander has deposed that he contacted Families SA on 28 December 2016 and reported his concerns to them. It is his evidence that an unidentified person, at Families SA, told him that he had “equal rights as a parent” and, as there were no orders extant, he should retain X in his care. Against this background, he returned to Tasmania with X. As a consequence, X has not interacted with her mother or sister, in any way whatsoever, since Christmas time, now approximately eight weeks ago.
Ms Leslie commenced these proceedings on 16 January 2017, seeking the urgent return of X to her care and the formalisation of what she characterised as the long-standing arrangements for her care. At her request, the application was given an expedited hearing on 30 January 2017. Mr Alexander was served with her application at an address in (omitted) on 24 January 2017.
In her affidavit, filed in support of her application for X to be returned to her care, Ms Leslie alleged that Mr Alexander was a violent alcoholic who had seriously assaulted her on more than one occasion whilst she had lived in Tasmania. She further alleged that Mr Alexander was unable to control his anger and had no insight into the effects of his violent behaviour on those around him.
In all these circumstances, it is her case that X is at significant risk of emotional harm if she remains in her father’s care particularly given her position that Mr Alexander has spent minimal time with X over the past three years. Underpinning Ms Leslie’s case is her assertion that it must be emotionally destabilising for X to be removed from her primary provider of care and the environment, including school and friends with which she is familiar in (omitted).
Mr Alexander was not able to file extensive material, prior to the first listing of Ms Leslie’s application on 30 January 2017. He had, however, been able to retain solicitors in South Australia and has apparently been granted legal aid to pursue his application that X remain in his care, in Tasmania, on both a final and interim basis.
In this context, he was able to provide his solicitor with reports from a general medical practitioner in (omitted) and a psychologist in (omitted) to whom he had taken X, following their arrival in Tasmania, to support his application to adjourn the proceedings on the basis of the urgency of the situation said to surround X and the alleged threat to her emotional wellbeing, if returned to (omitted).
The psychologist concerned is Mr M. A general medical practitioner, Dr G had referred X, to Mr M, following reports that she was suffering nightmares and insomnia on a background of psycho-social issues. Presumably, these reports had primarily come from Mr Alexander.
In his report, dated 25 January 2017, Mr M reports as follows:
“… Mr Alexander and X report that she has trouble sleeping and experiences nightly nightmares. She claims that she is afraid of many things including items of household furniture: She reported feeling like they had faces and were going to bite her. This leads her to stay awake and has also attempted to hit these items with a pool noodle in order to protect herself.
In session, initially, X was listening to youtube via headphones while Mr Alexander reported on the sequence of events and his concerns. She appeared to be relatively relaxed in doing this.
When I was speaking to X she took to her father's lap and initially communicated with me by whispering her responses to her father. She did break from this to speak to me directly and engaged well when we were speaking of her likes for pets etc. She did resume the whispering after a time, although her whispered responses were largely audible to be.
I asked her questions regarding where she wanted to be and where she felt safe. She indicated that she wanted to be in Tasmania with her father and did not feel safe where her mother's partner was. This was accompanied by burying her face in her father's shoulder. She mentioned concerns about being able to make friends in a new school where she is now residing. It was reported that she has experienced bullying at school previous1y. Mr Alexander was several times visibly upset in describing X's level of fear and his concerns for her welfare.
He has reported that he has received a summons to court in South Australia and for X to be there also. He reported concern for her ability to travel back to South Australia without extreme anxiety and possibly being placed in the care of someone of whom she has expressed fear.
In session X, did express verbally that she did not want to return to South Australia and this was accompanied by clinging to her father. This suggests some level of anxiety.
I don't know X well enough to suggest that she would not cope with having to make the trip or the possible custody outcomes from the court process. That being said, it is also possible that she could experience high anxiety or a traumatic response. I have scheduled a further appointment with X to continue to establish rapport with her and to ascertain how best to help her with coping with this difficult situation.”
Given the contents of this report, I was prepared to adjourn the proceedings to enable Mr Alexander to formally answer the allegations of family violence made against him and delineate, in full, the reasons why he had unilaterally removed X from her longstanding care arrangement.
In his affidavit, filed on 6 February 2007, Mr Alexander deposed that, during what he described as an anxiety attack, X disclosed to him as follows:
“When [X] was due to go back to the mother she became .extremely anxious. She had what appeared to be an anxiety attack the evening before she was due to return to the mother's care. She buried her head into me and said words to the effect ‘I want to tell you something but I'm too scared to.’ I asked her what was going on and assured her that I loved her very much and that she could tell me anything. X revealed that the mother and her partner Mr D were constantly arguing and constantly in bad moods. She said words to the effect that the mother would not listen to her and that Mr D was always drinking and in bad moods. X then burst into tears and told me that she had tried to buy me a gift for Father's Day but that Mr D had taken the money for her that she was going to use to purchase a gift.
X disclosed that Mr D had hit her and I asked what she meant by this. X said that she had a toy and threw it and that it had accidentally hit Mr D causing him to go into a ‘rage’. He then threw the toy at her which hit her in both the chest and neck. X disclosed that the toy hit her so hard that the mother was going to take her to the hospital. Instead, icepacks or frozen vegetables (I cannot recall which) were used to take the swelling down.
X disclosed that Mr D would get in a bad mood if he did not ‘get his bourbon cans’. X disclosed that she was scared of Mr D. She disclosed that he has punched holes in the wall.
I was also very concerned to learn that on more than one occasion X and the mother had escaped violent situations. X describes them as doing ‘runners’ and told me that they had gone into hiding from Mr D in a motel (being the (omitted) Motel).[2]
[2] See father’s affidavit at paragraphs 33-36
Accordingly, in this matter, both parties have made serious allegations that the other has exposed X to abuse and family violence. As a consequence, the provisions contained in section 67Z and section 67ZBA of the Family Law Act1975 are engaged.
These require parties alleging incidents of family violence and neglect to file a notice of risk setting out the particulars of such allegations. Besides formally informing the court of these matters, such notices are also provided to the relevant state based child protection authorities for their information and, if appropriate, action.
In this particular case, the mother’s notice of risk was provided to the South Australian Department for Child Protection, which responded 9 February 2017. The Department indicated that it had received three notifications of alleged child abuse, in respect of X, between 28 December 2016 and 7 February 2017. Each of these had been classified as a notifier only concern and, as a result, no formal departmental action had been taken.

In summary, the Department for Child Protection had been informed that Mr D had allegedly hit X in the face and X herself had been subject to emotional abuse and family violence, which had caused Ms Leslie to seek refuge overnight in a motel. It was further alleged that Mr D had punched holes in the wall of X’s home, causing the child to be terrified of him.
In addition, the records indicated that Mr Alexander was an alcoholic, who at an unspecified times had assaulted Ms Leslie by pushing her down a flight of fifteen stairs; strangling her; dragged her to a motor vehicle and threatened to dump her in a dam, before Ms Leslie was able to escape.
On any view, these allegations are extremely serious in nature. Clearly the allegations emanate from both the mother and the father. If true, to expose X to such a violent and antisocial individual has the potential to put X at significant risk. However, at this stage, none of these concerning allegations have been subject to any exhaustive or independent scrutiny. They remain allegations arising in bitterly contested and polarising proceedings before the court in which the parties concerned have a difficult and largely dysfunctional parenting relationship.
In this context, the proceedings create a dilemma for the court, which is impossible to resolve satisfactorily, at this interim stage, where the evidence available to the court, is untested and limited in nature. On the one hand, it is horrifying to consider a small child, such as X, being taken away from her main carer and the home with which she is familiar, for no proper reason, and being placed in the care of a violent and alcoholic person. On the other hand, it is equally horrifying to contemplate a traumatised child being returned to a compromised parent, who has exposed a young child to a terrifying home life characterised by serious family violence.
In these circumstances, the court is placed in an invidious position, being well aware of the possible serious and adverse consequences, for X, if it makes a wrong call in respect of the material placed before it and fails to take the appropriate action in respect of the conflicting notices of risk filed in the case.
Notwithstanding the evidentiary difficulties, arising at the interim stage, the court must still nonetheless make a decision and put in place the orders, which it considers will best regulate the situation, so far as X is concerned, according to the relevant principles contained in the Family Law Act 1975.
In this context, it is clear that the court is required to consider child protection issues, in its decision making processes, and should not defer its responsibility, in this regard because of deficiencies in the evidence before it or, more importantly because it is not in a position to resolve definitively controversies arising between the parties, including in respect of potential child abuse issues.
In Deiter & Deiter[3] the Full Court said as follows:
“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”
[3] See Deiter & Deiter [2011] FamCAFC 82 at [61]
In SS v AH[4] the Full Court indicated, in the context of discussing the obligations of the court whilst conducting interim children’s proceedings in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:
“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.”
[4] See SS v AH [2010] FamCAFC 13 at [100]
In Eaby & Speelman[5] the Full Court endorsed this approach as enabling “the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.” In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution at the interim stage. This is the position in the matter currently before the court.
[5] See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]

The mother’s position

Ms Leslie’s case is based on the following assertions:
·During the parties relationship, she was subject to significant episodes of violence from Mr Alexander;
·This violence took the form of slaps to her head, verbal put downs and threats, such as you’re a waste of space and if you weren’t the mother of our daughter I would just get rid of you, which she perceived as threats to kill her.
In addition, Ms Leslie asserts that she was subject to two significant episodes of family violence which occurred in or around September of 2011 and December of 2013, the latter incident being the one which caused her to flee Tasmania with X and A and return to Tasmania.
In the first episode, Ms Leslie asserts that Mr Alexander knocked her down a flight of stairs. In the second episode, she asserts that she was grabbed by her hair and thrown over a breakfast bar which caused her to become semi-conscious. In this state, she alleges she was placed in the back of Mr Alexander’s ute whilst Mr Alexander indicated that he was going to take her to a nearby dam where he would throw her over it. Ms Leslie deposes that she was frozen and terrified by this event.
Ms Leslie alleges that she was able to escape from the father’s vehicle, whilst he alighted from it to open a gate. At this stage, she observed Mr Alexander had brought a firearm with him. She was able to run to a neighbour’s home, from where the police were alerted. She was taken to hospital where she was diagnosed with a dislocated shoulder and neck injuries.
It is Ms Leslie’s evidence that Mr Alexander was arrested by police and remanded in custody. An interim family violence order was issued against Mr Alexander by the Magistrates Court at Devonport on 23 June 2014, which restrained him from approaching either Ms Leslie or A. As previously indicated, against this background, Ms Leslie and the children left Tasmania arriving in (omitted) just before Christmas in 2013.
It is the mother’s case that she attempted to have the Tasmanian family violence order transferred to South Australia. She has subsequently learned that this application was dismissed. She is perplexed as to why this is so and why criminal charges against Mr Alexander, in respect of the incident, were not apparently pursued.
In anticipation of Mr Alexander’s probable criticisms of her in her initial affidavit, Ms Leslie denied having any issues in relation to illicit drugs, alcohol, mental health problems or criminal offending. She deposes that she is extremely concerned that X will be missing her. In her affidavit, she has said as follows:
“X has always lived in my primary care and not known anything else. She has only ever spent brief visits with the father since separation for about one week each year. She also dotes on her new baby brother.” [6]
[6] See mother’s affidavit filed 16 January 2017 at paragraph 48-50
Ms Leslie has now had an opportunity to formally refute the specific allegations made by Mr Alexander regarding X’s relationship with Mr D. She denies that Mr D is a problem drinker. She further denies that X is scared of Mr D or that he has punched holes in the walls of her home in connection with any incident of family violence. Rather, she asserts that Mr D has been helping her renovate her home which has involved the knocking out of gyprock with a hammer. X has taken part in this activity, but only whilst wearing gloves and safety glasses.
Ms Leslie, of course, was not present when X made any particular disclosures of mistreatment either to Mr Alexander or Mr M. Accordingly, she was not in a position to refute the allegations in her initial affidavit. She has done so in a subsequent affidavit filed on her behalf. It is her position that Mr Alexander has misconstrued what the child has said, and that any distress which she is currently exhibiting, is as a consequence of being removed from her mother’s care.
In this context, she asserts that the toy thrown by Mr D, at X, was a soft one, which was thrown between the two whilst they were mucking around together. As a joke, an ice pack of frozen vegetables was applied to X’s arm where the toy landed. Her arm was not injured in any way whatsoever, certainly not to the extent of requiring hospital treatment. Essentially, Ms Leslie asserts that there is an innocent explanation for the incident, in respect of which Mr Alexander is not in a position to refute by providing concrete evidence that X was bruised or injured in any way whatsoever.
In addition, Ms Leslie denies that she has ever been forced to flee from Mr D and take refuge in a motel with X. She asserts that she and X did stay in a motel shortly prior to the birth of B, but this was only as a result of her labour having commenced and medical staff at the (omitted) Hospital wishing her to be close at hand, as the delivery progressed, rather than out at (omitted) out of (omitted), where she had been staying with Mr D.
In any event, in her most recent affidavit, Ms Leslie has indicated that she and Mr D have separated, although they continue to have an amicable relationship with one another and must continue to engage with one another in respect of future care arrangements for the newly born B.
In all these circumstances, Ms Leslie asserts that X has no reason to be frightened of returning to her care. Accordingly, she believes a more likely explanation for the child’s apparent disclosures to Mr M is that she has been subject to some form of coercion by her father. In these circumstances, Ms Leslie deposes as follows:
“I say that the father was at the psychological appointment for the entire period. I believe that X is even being made to lie by the father. X is normally an outgoing child and will talk to anyone. The fact that she was whispering answers makes be [sic] believe that she was being coaxed by the father and not comfortable about what she was saying.”[7]
[7] See mother’s affidavit filed 10 February 2017 at paragraph 73
It is Ms Leslie’s case that X is close to her maternal grandmother, who is currently gravely ill with lung cancer; her sister A; and her extended family, in (omitted) which includes sixteen cousins. She believes that Mr Alexander has behaved, as he has done, out of malice for her.

The father’s position

The father is extremely critical of the mother, as both an individual and a parent. He asserts that she is dependent on both marijuana and alcohol and alleges that Ms Leslie has fabricated allegations of family violence against him. He is critical of her past parenting of all of her children.
He concedes that there was one episode of family violence between the parties in late 2013. However, he denies that X was in any way exposed to it and asserts that the mother behaved in a provocative way towards him and threatened him with a knife. He denies that he made any threats to kill Ms Leslie. It is his position that the police withdrew charges against him because the mother did not prosecute her complaint against him which he defended vigorously.
Mr Alexander denies that he is dependent on alcohol and in support of his position points to the fact that his long-standing employer has a rigorous policy of subjecting its employees to scrutiny for drug and alcohol problems and he has never come to notice in this regard.
Mr Alexander refutes any suggestion that he has manipulated X in any way or influenced her presentation to Mr M. Rather, it is his position that he took the child for psychological support because he was concerned at her withdrawn presentation which was out of keeping with her normal bubbly personality.
At present, it is Mr Alexander’s evidence that X continues to display symptoms of extreme anxiety which he described variously as breakdowns or hysterics. It is his case that the child is not sleeping; rocks back and forwards whilst grabbing her hair; and runs in circles. This behaviour has disrupted her attendance at the school in Tasmania, in which he has recently enrolled her (without the mother’s consent).
It is Mr Alexander’s position that he will encourage X to spend time with her mother, but only when X is ready to do so. He asserts that the child does not wish to interact with her mother, at present and her mental health will be jeopardised, if she is compelled to do so, against her will.
In all these circumstances, on both a final and an interim basis, Mr Alexander seeks orders that would see X continuing to live with him. He proposes that, if and when she regains her psychological equilibrium, X spend time with her mother, in (omitted), during school holiday periods. Given his extensive frequent flyer points, Mr Alexander has indicated that he will be able to supply the necessary airfares for X.
In respect of Ms Leslie’s current application for X to return to (omitted), Mr Alexander deposes as follows:
I am extremely concerned that if X is ordered to return she will refuse to get on the plane. I will fly back with her because there is no way she could fly as an unaccompanied minor in her current state. It would be far too distressing for her. Even with me flying with X, I anticipate that she will have a meltdown and/or refuse to get onto the plane.[8]
[8] See father’s affidavit filed 15 February 2017 at paragraph 38
Given the parties polarised positions, it is clear that this is a difficult and finely balanced case, from which the following issues emerge.
·Has X been exposed to and/or subjected to family violence in her mother’s care;
·If so, what is a proportionate response to the degree of risk arising;
·In this context, was the emergency facing the family of sufficient moment to justify Mr Alexander unilaterally severing X’s relationship with her mother, sibling and other relatives, by moving her to Tasmania;
·What are X’s actual views or preferences in the matter;
·In reference to this question, what is influencing those views and is she of sufficient maturity to be able both to express a concluded view and for it to be acted upon by the court;
·What are the emotional consequences, for X, arising from her previous long-standing care arrangements being abruptly changed.
The parties themselves do not agree on how any of these issues are to be resolved. In respect of some of them, their resolution is likely to be dependent, at least in part, on an expert family report, which will involve X.
Given the urgency of the situation, there has, as yet, been insufficient time for such a report to be prepared. The resolution of the remaining issues is likely to turn on the court’s assessment of the credibility of each of the parties concerned. At this interim stage, it is not possible for findings of fact to be made in the context of credibility findings.
In all these circumstances, although the court can identify the salient issues likely to affect the outcome of the case, it cannot determine those issues in any definitive way. This is where the dilemma for the court arises.
In these difficult circumstances, it is necessary for the court to consider closely the legal principles applicable to the case to ensure that, in these invidious circumstances, it does its best to safeguard the interests of X, in both the short and longer term.

The applicable legal principles

At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.
In deciding to whether to make any particular parenting orders in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].
The matters which the court must take into account in deciding how a child’s best interests are to be served are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.
There are two primary considerations which are as follows:
a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served by any order which is made are set out in section 60CC(3). There are fourteen such criteria which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[9]
[9] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[10] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[11]
[10] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[11] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act. It means:
“(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”

As I understand Mr Alexander’s case, it is his position that X has suffered abuse, as defined above, as a consequence of being assaulted by Mr D; but more particularly because she has suffered serious psychological harm, as a result of being subjected to and exposed to family violence.
It is Ms Leslie’s position that Mr Alexander’s actions have deprived X of having the benefits of having a meaningful relationship with her mother. In addition, it is not likely to be in the child’s best interests to be subject to a significant change in her long-term living arrangements and to be separated from those individuals, who are most significant to her [see section 60CC(3)(b) & (d)].
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·a sexual assault or other sexually abusive behaviour;
·stalking;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person. Both parties have made allegations, against the other, which fall within the examples listed in sub-section (2).
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure which include:
·overhearing threats;
·seeing or hearing an assault;
·comforting or providing assistance to a member of the child’s family following an assault;
·cleaning up after property has been damaged; and
·being present when police attend an incident involving an assault.
In assessing cases involving family violence, the court needs to be aware of the nature of family violence in general terms. Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home. Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred. However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”[12]
[12] See Eaby & Speelman (supra) at 80,322 [21] per Ryan J
Family violence is not homogenous in its qualities and can arise in a variety of contexts. It is also well recognised, including by the legislature through the provisions of the Family Law Act, that family violence is prevalent in all works of Australian society and represents a great threat to the wellbeing of children.
Family violence can place children at actual physical risk of being hurt. It also has the potential to do them emotional harm, if they are subjected to exposure to a well-loved family member being hurt or frightened. For obvious reasons, individuals who use force to coerce or control another person are not appropriate role models for children.
Family violence 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 type of behaviour is more damaging, so far as children are concerned. But not all incidents of family violence will be damaging for a child.
At the interim stage, it is difficult for the court to characterise episodes of family violence and make precise findings in respect of allegations made. As with other aspects of abuse, it is a question of the court endeavouring to assess the relevant level of risk from any particular circumstance arising from the case.
In Deiter, the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and, as in the present case, the risk of a child being exposed to a parent’s sexual behaviour or more seriously the child being sexually assaulted or used as an object of sexual gratification.
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [13]
[13] Slater & Light [2013] FamCAFC 4 at [37]
In W and W [Abuse allegations: unacceptable risk][14] the Full Court summarised a number of authorities dealing with abuse allegations. I acknowledge that the considerations delineated are more relevant to final hearing situations. However, in my view, they remain a useful yardstick to assist the court in assessing whether an unacceptable risk arises, in any particular parenting situation. They include the following:
[14] W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
·What is the nature of the events alleged to have taken place;
·Who has made the allegations;
·To whom have the allegations been made;
·What level of detail do they involve;
·Over what period of time are the events alleged to have occurred;
·What are the effects exhibited by the child;
·What expert evidence has been provided;
·Are there satisfaction explanations for the allegations apart from abuse;
·What are the likely future effects on the child.
Cases involving the actual or potential relocation of a child far away from one of his or her parents are particularly difficult for the court involving, as they do, competing legal principles relating to freedom of movement and the entitlement of children to have a beneficial level of relationship with not just one but both of their parents. For obvious reasons, issues to do with relocation invariably have very significant implications for the welfare of children, particularly young children, who cannot easily sustain relationships with parents over distance.
Accordingly, the Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.[15]
[15] See C & S [1998] FamCA 66
Relocation has implications for the quality and intimacy of the parental relationship a child has with the absent parent. These concerns are particularly pressing in respect of young or immature children. In this particular case, I bear in mind what was said by Boland J in Morgan & Miles.[16] Her Honour 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 type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases”.
[16] Morgan & Miles (2007) FamCA 1230
These considerations are relevant in the present case. These are interim and so abridged proceedings. Accordingly, the following questions arise.
·what was the situation confronting Mr Alexander in December of last year;
·was it a situation of such emergency that the move of X to Tasmania can be readily justified;
·what arrangements can be made for X to spend time with her mother;
·what are the appropriate steps to protect X from being exposed to family violence, in the short to medium term, given the nature of the allegations, which have been made.
In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.
As a consequence of this emphasis, the legislation contains 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 [Family Law Act 1975 section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode can be summarised as follows:
·consider the section 60CC matters relevant;
·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 an interim matter only, it is not considered “appropriate” for it to be applied;
·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.

Consideration

It is unchallenged that Ms Leslie has been X’s primary and sole provider of care since at least December of 2013. In these circumstances, it must be a significant outcome for the child to be abruptly removed from her carer and placed in an environment with which she is largely unfamiliar. At present, she has no level of relationship whatsoever with her mother and older sibling, let alone a meaningful level of relationship.
In my view, such an outcome can only be justified if there is cogent evidence to indicate that X would be at significant risk of harm, if returned to (omitted). Accordingly, the central issue for the court is whether the situation, as described by Mr Alexander and refuted by Ms Leslie, was of sufficient seriousness to justify the significant step of removing X from (omitted) to (omitted).
In this context, in my view, the following factors are relevant. Firstly, Mr Alexander does not assert that he witnessed any physical injury to the child. Rather, he asserts that X disclosed inappropriate conduct, emanating from Mr Alexander, which upset her. In this context, Mr Alexander chose not to discuss the matter with Ms Leslie to ascertain whether or not she had a reasonable explanation for the child’s behaviour or in order to otherwise allay his fears.
Rather, Mr Alexander elected to take extreme action. In this context, in my view, the provision to him of extremely generic advice, from the child welfare authorities, is of no assistance to him, particularly given that those authorities chose to do nothing about Mr Alexander’s contact with them, other than to firstly act as an amanuensis of his complaint and then an archivist of it.
Ms Leslie has provided an explanation of the events about which X has allegedly complained. If these explanations are ultimately accepted, they exonerate both Ms Leslie and Mr D from any criticism. I appreciate that these explanations may have been recently concocted in order to defuse the child’s alleged disclosures but nonetheless they do fit in with what X has said to Mr Alexander in a context in which he himself has chosen not to conduct any fact check with Ms Leslie.
It is Ms Leslie’s position that it cannot be the case that Mr M was fully apprised of all the circumstances relevant to X, particularly the endemic conflict between her parents. As such, she contends that the court should approach his report with a high degree of caution. Mr M, to his credit, conceded that he did not know X well although he accepted that she was exhibiting anxiety during the consultation occurring between him, Mr Alexander and the child.
It is also the case that Mr M received no input or background from Ms Leslie prior to providing his opinion in respect of X. As the child’s primary carer, it is likely that she would have been able to provide him with a great deal of information about X. In these circumstances, in my view, I must approach the report with a significant level of caution and regard it as both incomplete and provisional in nature.
It is also not beyond the bound of possibility that because Mr M received information from one parent only, his view of X has been influenced, even subconsciously, by Mr Alexander’s presentation to him. It is also highly possible that X herself has been influenced, in some way, either directly or indirectly, by her father’s behaviour. In this context, in my view, it cannot be said that Mr M’s intervention with X occurred on a metaphorically level playing field.
Mr M's report is the only independent source of corroboration available to the court that X is at significant risk of coming to emotional harm, if returned to Ms Leslie’s care in (omitted). However, Mr M has given no consideration to the possible adverse consequences, for X, of being separated from her long-term primary carer.
In addition, Mr M is not in a position to evaluate the truth or otherwise of X’s complaints about Mr D and particularly the extent of the conduct of which she apparently complains, given that he, like Mr Alexander, has not fact checked them with Ms Leslie. Given the serious ramifications of removing X from the environment with which she is familiar, I consider that it would be imprudent to do so, on the basis of Mr M’s report alone.
The applicable legislation requires me to consider any views expressed by the child concerned and any factors which may affect the weight to be given to those views, such as the child’s maturity or level of understanding. Mr Alexander asserts that X is expressing a strong view to remain in his care and by necessary implication it would be detrimental to her emotional integrity if she perceives that she is being ignored.
In this context, I bear in mind X is not yet eight years of age. Accordingly she cannot be regarded as a mature child with any approaching a comprehensive understanding of the difficult issues surrounding her care. It is also unclear what are all the factors currently impacting on her.
To Mr M, X indicated a concern about being bullied at school in (omitted). This is an issue which has not been unpacked to any degree whatsoever in the current proceeding but may be important, particularly from X’s perspective. However bullying alone would not appear to justify the extreme step of changing her place of primary residence, notwithstanding how troubling the issue is to a little girl, such as X. It requires adult intervention with the school authorities.
What is X’s ultimate preference is likely to be highly controversial. In my view the issue remains unclear. The best means to examine it is through the mechanism of a comprehensive family report. I do not regard Mr M’s report as being such a comprehensive report.
In my assessment, there are potentially serious risks for X of potentially depriving her of the safety and security of her long-term primary carer, on the basis of uncertain allegations of exposure to harm. It is clear that the parties themselves have had a difficult and turbulent relationship with one another in the past. In this context, it may possibly be the case that Mr Alexander himself is not an objective assessor of the degree of risk currently arising for X.
At this juncture, Mr Alexander does not make specific current allegations against Ms Leslie, other than she has been in an abusive relationship with Mr D. His complaints about Ms Leslie’s alcohol and drug abuse are historical in nature and hitherto have not been of sufficient magnitude to cause him to bring formal proceedings in respect of X.
Every case involving a relocation aspect requires a close and idiosyncratic consideration. Perhaps, Mr Alexander was aggrieved, in late 2013, when Ms Leslie relocated X from Tasmania to South Australia. However, at the time, he elected not to subject her behaviour, (and indeed his own) to any external form of scrutiny through the making of an application to this court or any other.
As a consequence, it is clearly the case that X has become well settled, in (omitted) in the care of her mother and the company of her older sister. Mr Alexander has brought this longstanding arrangement to an end unilaterally whilst raising significant welfare concerns in respect of X.
In my view, the appropriate place to investigate those issues is in the location where those issues arose rather than in the location which is likely to better suit Mr Alexander. The chief mechanism through which the matters raised by Mr Alexander are likely to be best investigated is a family report. This can be done in either Tasmania or South Australia, but, given Ms Leslie’s situation, it will be easier for her if it occurs in South Australia, particularly as it is Mr Alexander’s position that he has the resources to travel relatively easily.

Issues surrounding the logistics of contact arrangements are likely to be a significant factor in the final hearing of the matter. In my view these matters need to be closely investigated at the final hearing stage as do the other relocation issues. In order to enable this careful evaluation to occur, in my view, it is important, so far as is practicable and subject to the paramountcy of X’s best interests, to return to the status quo prevailing prior to Mr Alexander’s unilateral action.
In all these circumstances, I do not think the situation confronting Mr Alexander was one of such serious emergency that the extreme step of removing X from her mother’s care can be justified, particularly in the context of what is obviously a very significant relocation for both X and Ms Leslie. I do not consider that this issue should be determined against a background skewed in Mr Alexander’s favour by his unilateral action.
As I am at pains to point out, the claims of family violence raised by both parties are extremely serious. If Ms Leslie’s claim of being rendered semi-conscious, then bundled into a car and threatened with death, is true, it would represent an obviously terrifying ordeal and the person who perpetrated such violence on her is not likely to be an appropriate role model for a young child. In addition it is readily understandable why the victim of such behaviour would be frightened of the person who inflicted it upon her.
It is equally horrifying to consider X being exposed to her mother being assaulted or intimidated by Mr D. Such behaviour, for obvious reasons, is liable to make a child anxious and fearful. However, at this juncture I am unable to make findings of fact about these matters. Rather I must remain focus on the risks incumbent in each proposed outcome and put in place a response which is proportionate to the risk assessed.
In my view, it represents too great a threat to X’s emotional wellbeing for her to be deprived of access to her primary carer for quite possibly a lengthy period of time. In my view, a proportionate response to the threat arising from Ms Leslie’s relationship with Mr D is to restrain Ms Leslie from bringing X into contact with Mr D.
Mr Alexander has many other criticisms of Ms Leslie relating to her drug and alcohol use. These criticisms are historical in nature and Mr Alexander has not chosen to pursue them formally until now. In my view, this significantly reduces their potency. For these reasons, I have reached the conclusion that X should be returned to her mother’s care, at Mr Alexander’s expense, no later than 5 March.
Mr Alexander asserts that he doubts he will be able to persuade X to board any aeroplane to return to Ms Leslie. Apart from these assertions, neither party has discussed the mechanics of the child’s return to South Australia. It is likely to be difficult for Ms Leslie to travel at present, given her responsibilities for B. In these circumstances, if Mr Alexander deems it appropriate for X to be accompanied between Tasmania and South Australia (or the airline in question require it), he should provide such accompaniment and pay the necessary costs arising. If Mr Alexander fails to comply with the order, a recovery order, directed to the appropriate law enforcement agencies, will issue without further reference to Mr Alexander to ensure that the child is returned as ordered.
I will make orders formalising arrangements for Mr Alexander to spend time with X in the forthcoming school holidays, but consider that the time should take place in (omitted), as it has done previously. In the circumstances, it can be a block period of time. I will also make specific orders in respect of telephone communication.
As is clear from these reasons for judgment, the respective positions of the parties are polarised in the extreme. They mistrust one another and communicate not at all. Each has asserted that the other has a compromised level of insight into the responsibilities incumbent on being a parent. In these circumstances, it is clearly inappropriate that the presumption of equal shared parental responsibility be applied to their parenting of X.
The next important step in resolving the complex issues in dispute between the parties is to commission a family report. I will make an order to this effect and direct that the necessary report be finalised as soon as practicable.
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 thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 28 February 2017

[2017] FCCA 337

28 February 2017

Key Legal Topics

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Family Law

Civil Procedure

Legal Concepts

Injunction

Remedies

Procedural Fairness

Jurisdiction

Discovery