Madar & McCormack
[2021] FedCFamC2F 500
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Madar & McCormack [2021] FedCFamC2F 500
File number(s): ADC 1045 of 2020 Judgment of: JUDGE DICKSON Date of judgment: 23 November 2021 Catchwords: FAMILY LAW – parenting – interim hearing – where mother unilaterally relocated from City B to Town C without father’s knowledge or consent – where father seeks that the child and mother be returned to the City B area on an interim basis – where father further seeks that his time with the children commence on an unsupervised and increased basis – where on the available evidence the father’s time should increase and become unsupervised – where the Court declines to return the mother to City B on an interim basis – where the issue of relocation will be dealt with at final hearing Legislation: Family Law Act 1975 (Cth) Pt VII ss 61DA, 60CA, 60CC Cases cited: Dieter & Dieter [2011] FamCAFC 82
Edgar & Strofield [2016] FamCAFC 93; (2016) FLC 93-711
Goode & Goode (2006) FLC 93-286
Hartland & Hartland [2020] FCCA 937
Slater & Light [2013] FamCAFC 4
Vaughton & Randle [2014] FamCA 147
Division: Division 2 Family Law Number of paragraphs: 131 Date of hearing: 22 November 2021 Place: Adelaide Solicitor for the Applicant: Mr Siklich of Howe Jenkin Counsel for the Respondent: Ms Pangallo Solicitor for the Respondent: R J Cole & Partners ORDERS
ADC 1045 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MADAR
Applicant
AND: MS MCCORMACK
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
23 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Paragraphs 1 and 2 of the orders made on 3 August 2021 be discharged.
2.Paragraphs 1 and 2 of the orders made on 23 December 2020 be discharged.
3.Paragraph 1 of the orders made on 25 June 2020 be discharged.
4.The child, X born in 2019 do live with the mother.
5.The said child do spend unsupervised time with the father as follows:
(a)On Tuesday 23 November 2021 from 3.30pm to 6.30pm;
(b)In week one, being Friday 26 November 2021 and Saturday 27 November 2021, between the hours of 8.00am and 1.00pm on each day and each alternate weekend thereafter;
(c)In week two, on Saturday 4 December 2021 and Sunday 5 December 2021 between the hours of 8.00am and 1.00pm on each day and each alternate weekend thereafter;
(d)For the purposes of Christmas Day 2021 from 8.00am to 2.00pm;
(e)On the child’s birthday, in 2022, from 8.00am to 2.00pm;
(f)As and from February 2022, the time in weeks one and two be extended such that such time conclude at 2.00pm on each occasion;
(g)As and from March 2022, the time in weeks one and two be extended such that the time conclude at 3.00pm on each occasion;
(h)As and from April 2022, the time in weeks one and two be extended such that time conclude at 4.00pm on each occasion.
6.The child spend time with the father by way of video call each Wednesday at 5.00pm with the mother to initiate such call to the father’s mobile telephone.
7.All handovers do take place at the City B Police Station (or such other place as the parties agree in writing) between the paternal grandmother and the mother or the maternal grandparents.
8.Without admission, the father be restrained by way of injunction from:
(a)Drinking alcohol or consuming any illicit substances whilst the child is in his care;
(b)Faciliating handovers if the mother is present at such handover.
9.Without admission, the mother be restrained by way of injunction from:
(a)Relocating the child’s principal place of residence from Town C, South Australia SAVE AND EXCEPT with the father’s prior written consent or an order of this Court;
(b)Enrolling the child at any kindergarden or school without the father’s written consent or an order of this Court; and
(c)Taking the child to consult with any medical practitioner, psychologist, social worker or counsellor for any mental health disorder or emotional disregulation without the father’s written consent or an order of this Court.
10.The father do continue to attend upon Mr H, as directed by Mr H, and do follow Mr H’s reasonable advice.
11.The father’s interim application for the mother to return the child’s principal place of residence to no more than 25km from City B be dismissed, noting that the father is not prohibited from pursuing such an application at trial.
12.The mother do file and serve an Amended Response, setting out with particularity the final orders sought by her at trial for parenting within 21 days.
13.The parties do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, to be undertaken by Ms M, with such assessment to include observed interaction between the child(ren) and each parent and the mother’s partner, Mr E, and, at the discretion of the family assessor, home visits to each parent, with such report to be available no later than 8 April 2022.
14.The Family Assessment Report to deal with the following matters:
(a)any views expressed by the said child/ren and any factors (such as the said child/ren’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the family assessor considers important to the welfare or best interests of the said child/ren.
15.The costs of such assessment, and the report arising from such assessment, to be borne equally by the parties.
16.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 Child Dispute Co‑ordinator.
17.Pursuant to reg.10.05 of the Federal Circuit Court Rules 2001 (Cth), the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 25 February 2022 at 9.00am.
18.The applicant pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 at least 28 days prior to the Conciliation Conference unless otherwise exempted from payment.
19.The respondent reimburse the applicant one half of the Conciliation Conference fee within 14 days thereafter unless otherwise exempted from payment.
20.Pursuant to Section 13C(1)(b) of the Family Law Act1975 (Cth), the parties and their legal representatives (if any) shall attend:
(a)Part 1 of the confidential Court-based Family Dispute Resolution (FDR) Conference with a Registrar (as Family Dispute Resolution Practitioner) on a date and time to be fixed, (in the week of 18 April 2022) with each party to attend separately at times to be advised; and
(b)Part 2 of the confidential Court-based FDR Conference on a date and time to be fixed but not later than 7 days after the date referred to in order 20(a).
21.The matter shall be referred to the Executive Director of Dispute Resolution for allocation and listing of the FDR Conference dates.
22.Any party who has not previously provided the Court with an email address must provide the preferred email address (and include details of the file name and Court file number) to …@... within 2 days of the making of these orders.
Part 1 of the FDR Conference
23.Part 1 of the confidential FDR Conference shall proceed by telephone and each party must, within 2 days of receiving notification of the dates of each part of the FDR Conference, notify the Court by email of their best contact telephone number (and include details of the file name and Court file number).
24.Unless otherwise directed by the Registrar conducting the FDR Conference, the Independent Children’s Lawyer’s appearance shall be excused from Part 1 of the FDR Conference.
25.Not later than 4.00 pm 7 days prior to Part 1 of the FDR Conference, each party must:
(a)ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 have been exchanged;
(b)ensure that any private expert report that is relevant to the proceedings has been filed;
(c)provide to the Court by email and to the other party a single collated bundle of documents comprising:
(i)a Confidential Outline of Case (Dispute Resolution);
(ii)a detailed minute of Orders Sought;
(iii)details of any previous or current family violence orders; and
(iv)a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted).
FDR Conference
26.The parties shall otherwise comply with any other necessary order, direction or request made by the Registrar to facilitate the FDR Conference.
27.The Registrar may vacate the FDR Conference in the event:
(a)of non-attendance by either party at Part 1 of the Conference; or
(b)that pursuant to Regulation 29 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008, the Registrar is no longer satisfied that the conference is appropriate.
IT IS NOTED:
A.The Executive Director Dispute Resolution shall have regard to the following when fixing a date for the FDR Conference:
(a)This matter requires the involvement of a Court Child Expert (as Family Counsellor) in the FDR Conference.
B.The dates and times fixed for all parts of the FDR Conference will be emailed to the parties and their legal practitioners, including any Independent Children’s Lawyer, at the email address noted on the Court file or provided in compliance with these orders.
C.Documents required to be provided to the Court pursuant to these orders must be emailed to the Court via the email address for the Registrar’s Case Manager as indicated in the email confirming the FDR Conference dates and times.
D.Not later than 4.00pm 7 days before the FDR Conference date, the lawyer for each party must give the party for whom they act a written notice of:
(a)the party's actual costs, both paid and owing, up to and including the Family Dispute Resolution Conference; and
(b)the estimated future costs of the party up to and including each future court event, including trial; and
(c)any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of the expenses.
E.For the purposes of the Family Dispute Resolution Conference, the parties are referred to s 131 of the Evidence Act 1995 (Cth) and ss 10J and 10H of the Family Law Act1975 (Cth) and to the Court’s Family Dispute Resolution Fact Sheet.
F.The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the FDR Conference only. It is not to be filed or relied upon after the conclusion of the conference.
G.Part 1 of the FDR Conference is the first part of the Conference and is confidential. The other party will not be in attendance.
H.The FDR Conference is an opportunity for the parties to make a genuine effort to resolve their parenting dispute in a confidential, child focussed setting. The parties are to be resolution focussed and respectful during negotiations, and to be mindful of the financial and emotional costs associated with prolonged litigation.
I.The structure and duration of the FDR Conference will be at the discretion of the Registrar and will vary depending on the nature of the issues for consideration. Unless otherwise advised:
(a)parties and their legal representatives in half day conferences are expected to be available until at least 1.00pm and at the specific times requested by the Registrar; and
(b)parties and their legal representatives in full day conferences are expected to be available for the entirety of the day and at the specific times requested by the Registrar.
THE COURT FURTHER ORDERS:
28.That this matter be listed for Trial on property and children’s matters before Judge Dickson on 14 June 2022 NOTING 4 days allowed, with such trial to be conducted on a face-to-face basis in accordance with the Courts protocols.
29.That no later than twenty-eight (28) days prior to the Trial date, the Applicant pay the cost of the Setting down fee and any Daily Hearing fee as required, or obtain a Remission Certificate in respect thereof.
30.Solicitors for the applicant shall forthwith advise the Associate to Judge Dickson at …@... on becoming aware that the matter has settled or for any other reason will not be proceeding to full hearing on the days allowed.
31.All extant interim applications be dismissed.
32.Further consideration of the matter is adjourned to 9.30am on 27 April 2022 before Judge Dickson for directions by phone.
AND THE COURT NOTES:
A.That in the event that any of these Orders are not complied with, the Court shall relist the matter at short notice to the parties and give consideration to vacating the Trial.
B.The Court shall expect the parties to comply with r 12.06 of the Federal Circuit and Family Courts of Australia Rules (Family Law) 2021 (Cth) prior to the hearing dates set out in the within order.
C.That if in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross‑examine the other party/parties.
D.That affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such Application must be made at least 12 weeks prior to the Final Hearing.
E.That further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If any practitioner acting for a party to whom section 102NA applies should cease to act for the party, then the practitioner is directed to contact her Honour’s chambers as soon as possible to advise of the need for an urgent directions hearings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex tempore reasons settled from transcript)JUDGE DICKSON
INTRODUCTION
The reasons for judgment in this matter were delivered orally following the hearing between the parties concerned. These reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
These proceedings concern competing parenting and property applications between Mr Madar (‘the father’) and Ms McCormack (‘the mother’). The parties commenced a relationship in 2009 and were married in 2017. The parties separated for the final time on or about 29 November 2019.
The father is described as a self-employed tradesman operating a business known as AN Pty Ltd. The mother, until recently, was engaged in domestic duties and care of the parties’ child, but more recently has obtained employment as a professional.
The parties have one child, X who is currently aged two years. The proceedings were commenced by the father on 12 March 2020. In that Application, the father sought orders for equal shared parental responsibility and, ultimately, aspired to have X living between the parties on a shared cared basis. The father’s Application was amended in June 2020 to include final orders for property settlement.
By way of Response filed on 9 April 2020, the mother seeks final orders for sole parental responsibility; that X live with her; and that the mother be relieved from particularising her specific orders for time spending until such time as the father had obtained a psychiatric report from Dr P. The report of Dr P was made available to the parties and is dated 18 May 2020.
During the course of submissions yesterday and in response to a query from the Court, Ms Pangallo, counsel for the mother, informed the Court that her client’s proposed final orders can be summarised as:
(1)That the mother have sole parental responsibility.
(2)That the mother be permitted to live in Town C.
(3)That the father spend day time supervised until X is four years of age.
(4)That upon X turning four years of age and until he commences school, the father spend unsupervised overnight time with X such that:
(a)In week 1, overnight time occur from Friday to Saturday; and
(b)In week 2, overnight time occur from Wednesday to Thursday.
The mother further proposed that once X commenced school, the father spend overnight unsupervised time with X:
(1)In week 1, from after school Friday to the commencement of school Monday.
(2)In week 2, for one overnight period from Wednesday to Thursday.
The mother further proposes that the school holiday time be shared equally between the parties with handover occurring at a mid-point, such as the Town AD Police Station, and the mother also promotes a sharing of special occasions and that she will provide video or telephone calls.
It is obvious from the mother’s anticipated final orders that the mother expects that there will ultimately be a lifting of supervision and an increase in the father’s time to normalise X’s experience with his father. At the time of hearing yesterday, X has only spent limited daytime supervised visits with his father. The father does not seek orders for overnight time with X at this hearing.
BRIEF BACKGROUND
The parties separated in acrimonious circumstances in November 2019. A period of time followed when the mother alleges that she was in hiding from the father as a result of her allegations of family violence. The mother obtained an interim Intervention Order against the father in late 2019, which included the mother and X as Protected Persons. A final Intervention Order was granted by consent in early 2020 protecting the mother only, with X being removed from the Intervention Order on a final basis.
I pause here to note that the mother alleges there have been two breaches of the Intervention Order, with the latest breach having occurred over 12 months ago. This has only recently been the subject of further inquiry of the father in the period leading up to the decision being made by this Court in relation to interim living arrangements. I am not able to take that matter further, but I approach with some caution the recent involvement of the South Australian Police (‘SAPOL’) in circumstances where the mother alleges that the delay was caused by the father evading being spoken to by the police. I note that the father continues to reside at the same home in City B and, indeed, handovers occur on a weekly basis to and from the City B Police Station.
Since March 2020, there has been a slow progression of X’s time spending with his father. It is pertinent for these reasons to note up to this point how time spending has taken place. On 25 June 2020, an order was made by his Honour Judge Heffernan (as he then was) for the father to spend time with X each Tuesday and Thursday between the hours of 3:30pm and 6:30pm, and each alternate Sunday from 9:30am to 12:30pm, with time to be supervised by Ms AO, the father’s sister-in-law. An order was also been made that the father’s brother, Mr AP, not be in attendance during these visits.
For all intents and purposes, this is the time spending which remains extant. For a period of nearly 18 months, X’s time with his father has not progressed in any meaningful way, nor has there been any revisiting by the Court on the requirement for strict supervision.
An order was made on 17 September 2020 providing that X spend time with his father through the auspices of AR Contact Centre. I understand that the purpose behind this order was so that the Court could be informed about X’s interactions with his father, and that there be some independent evidence about the father’s ability to care for X in that environment. That Report was made available to the parties on 14 July 2021. I will return to that report shortly.
On 14 December 2020, time was ordered for X to see his father on Christmas Day 2020 from 9:30am to 12:30pm, and on X’s birthday, in each year, from 9:30am to 12:30pm, with such time to take place, again, on a supervised basis. On 23 December 2020, the father’s time was to be formally supervised by his mother, and with handovers to occur between the paternal grandmother and the mother or the maternal grandparents at the City B Police Station.
On 3 August 2021, an order was made restraining the father from being at handover at the City B Police Station. The parties were directed to attend a Family Dispute Resolution (‘FDR’) Conference on 3 February 2022, and the matter was adjourned before Judge Howe for a Compliance Hearing on 11 February 2022.
For the purposes of these reasons, I should note that counsel have agreed that the FDR Conference scheduled for 3 February 2022 should be vacated, and I intend to make that order shortly. I am not, however, able to vacate a hearing before another Judge of this Court and I would invite counsel to approach her Honour’s chambers at the conclusion of these orders to seek that the compliance hearing be vacated, given that there will be wide ranging orders made today, and the FDR Conference, in my view, for 3 February 2022 is too premature.
PARTIES COMPETING APPLICATIONS
The father relies upon an Amended Application in a Proceeding filed on 26 October 2021. That Application was amended from his original Application in a Proceeding filed on 17 September 2021, when it became evident from a perusal of the mother’s answering documents that she had moved to a country location which involved significant driving between City B and the mother’s new residence.
The father’s Amended Application in a Proceeding seeks orders for unsupervised time spending on six occasions across each 14 days, together with an order seeking that the mother return the residence of X to within 25 kilometres of City B and thereafter the mother be restrained from changing the child’s place of residence from City B.
In addition, the father relies upon his Affidavits filed on 14 September 2021, 26 October 2021 and 19 November 2021. He further relies upon an Affidavit filed by his brother, Mr Y, on 26 October 2021 in relation to a discharge of an order which restrained Mr AP from being present at any period of time spending between the father and X. That order is contained in paragraph 1 of the order made on 25 June 2020.
I was advised by counsel at the commencement of the hearing that the mother abandoned her opposition to the father’s application to discharge the injunction in relation to Mr AP. Therefore I do not need to rule on that issue, because that order will now be made by consent.
In addition to those documents, the father relies upon the following Affidavits filed by his solicitor Mr Siklich:
(1)Affidavit filed 10 June 2020, annexing a copy of a drug screen test, which confirms the absence of any illicit substances at the time that the test was undertaken.
(2)Affidavit filed 30 July 2021, annexing a copy of a report from the Contact Centre at City B.
(3)Affidavit filed 10 June 2020, annexing copies of reports from Mr H, Therapist, and Dr P, Psychiatrist.
(4)Affidavit filed 20 November 2020, annexing a report from Mr H, Therapist.
(5)Further documents relied on by the father being:
(a)The Child Impact Report prepared by Dr T dated 21 September 2021; and
(b)Amended Summary of Argument, filed 19 November 2021.
In addition, I had benefit of extensive submissions made by Ms Miller, of counsel, on behalf of the father at the hearing yesterday.
For her part, the mother relies upon:
(1)Her Amended Response to Application in a Proceeding, filed on 17 November 2021.
(2)Her Affidavits filed on 13 October 2021 and 17 November 2021.
I further had the benefit of a Summary of Argument filed by Ms Pangallo, of counsel, on 22 November 2021, supplemented by Ms Pangallo’s oral submissions made on behalf of her client at the hearing yesterday. I thank counsel for the provision of the outlines of case, and the focused way in which submissions were made on behalf of their respective clients.
The central issues in dispute between the parties are as follows:
(1)The father’s application to increase his time with X and to discharge the requirement for supervision. The mother proposes an increase in the father’s time with X, but opposes any discharge of the supervisory requirement, which has been extant since June 2020.
(2)The father’s application seeking that X’s residence be returned to within a 25 kilometre radius of City B and that the mother be thereafter restrained from changing X’s place of residence from City B. This application is opposed by the mother.
(3)The issue with respect to Mr AP, which, as I observe, will be resolved ultimately by way of a consent order.
The father’s Amended Application in a Proceeding filed on 26 October 2021 sets out that the father seeks the following orders:
(1)That the father spend time with X:
(a)Each week on Monday and Wednesday from 3:00pm to 7:00pm;
(b)On each alternate weekend on Saturday from 9:00am to 6:00pm; and
(c)Each intervening week on Friday from 9:00am until 6:00pm.
(2)That the handover orders be discharged, and in lieu thereof, handovers occur between the mother and/or the maternal grandparents and the father at the City B Police Station.
(3)That there be injunctive orders with respect to the mother’s return to City B.
The mother in the Amended Response filed on 17 November 2021 proposes that the father spend time with X as follows:
(a)Each alternate week on Friday 9:00am to 1:00pm and on a Saturday from 9:00am to 1:00pm and each alternate week thereafter;
(b)In the intervening week, on Wednesday from 9:00am to 1:00pm and on Thursday from 9:00am until 1:00pm; and
(c)Such further or other times as agreed between the parties in writing.
As is often the position as these hearings unfold, each of the parties modified their positions in relation to time spending throughout yesterday’s hearing. In response to a query made by me directed to Ms Miller, on behalf of the father, the father submitted that in the event that the mother was permitted to remain living in Town C pending trial, that the father should spend time with X each weekend, being week 1, Friday and Saturday, and week 2, Saturday and Sunday, for whatever times the Court determined were in X’s best interests.
The father also sought an order for Christmas Day 2021 from 9:00am to 3:00pm and for the purposes of X’s birthday in 2022 from 9:00am to 3:00pm. The father’s alternate position with respect to time spending was put on a pragmatic basis. Clearly, if the mother is permitted to remain living in Town C pending trial, the orders promoted by the father for mid-week time are unworkable in circumstances where the current arrangements provide for short frequent periods of time, as opposed to longer frequent and more infrequent periods of time, as one might expect as children grow and develop.
The father’s concession was given in circumstances where a drive of approximately two hours one way between City B and Town C would be a heavy burden, not only for the mother, but, in particular, for X, should the father’s application be acceded to without bringing to account the mother’s change of living arrangements.
For her part, the mother also amended the orders proposed by her at the hearing yesterday. The mother now promotes time spending between the father and X as follows:
(1)Each alternate week:
(a)On Friday from 8:00am to 1:00pm; and
(b)On Saturday from 8:00am to 1:00pm.
(2)In the intervening week:
(a)On Wednesday from 8:00am to 1:00pm and
(b)On Thursday from 8:00am to 1:00pm.
(3)A video call on one occasion per week.
(4)That the time remain supervised by the paternal grandmother.
The submission made by Ms Miller, on behalf of the father, was that the mother’s proposals for time spending from 8:00am to 1:00pm were not available to the father in circumstances where he is a self-employed tradesman and he needs to attend to his business duties and obligations during working hours, as opposed to the end of the day. The father had, of course, promoted time periods on Monday and Wednesday from 3:00pm to 7:00pm.
The father submits that he, as a tradesman, needs to work tradesman hours, and the mother’s proposal for time spending to therefore occur at the commencement of tradesman hours was simply unworkable.
It is against that background that I am now asked to determine interim arrangements in relation to X’s time spending with his father pending trial. The father’s Affidavit filed 14 September 2021, sets out that from the father’s point of view he believes that time spending has progressed extremely favourably and that X is now comfortable in his care. The father describes his time with X as progressing very positively,[1] and the father also sets out that he has complied with all orders of the Court in order to progress his time spending with X. From the father’s point of view, a revisitation of his time spending with X is long overdue.
[1] See father’s Affidavit filed 14 September 2021 at [12].
For her part, the mother sets out in her documents the following complaints in relation to the current time spending:
(1)That X is returned to her late, and on occasions up to 20 to 30 minutes late.[2]
(2)That X is returned hungry, thirsty or not bathed.[3]
(3)That X’s behaviour has regressed and that he appears agitated, upset and restless following periods of time with his father.[4]
(4)That whilst the mother admits that the Children’s Contact Centre report did not show any significant difficulty in X’s time with his father, the mother makes the observation that the father was on his best behaviour and the mother, therefore, treats with caution the observed interaction as recorded in the Children’s Contact Centre report.[5]
(5)The mother alleges that the father has not demonstrated that he is able to respond adequately to X’s needs.[6]
[2] See mother’s Affidavit filed 13 October 2021 at [5].
[3] Ibid.
[4] Ibid.
[5] Ibid [12].
[6] Ibid [16].
Whilst the father admits that there have been some occasions when handover has occurred beyond the Court ordered time, the father otherwise denies the allegations made by the mother. As was submitted by Ms Miller, on behalf of the father, yesterday, the child’s tiredness or regression and the provenance of same is hard to determine in the absence of any independent evidence and, of course, there has been a significant change in X’s living arrangements. X has now moved from City B where he lived with his maternal grandparents to Town C, where he now lives with the mother and her new partner. Of course, the main change to X has been the amount of travel that has been required for him to attend visits with his father on Tuesdays and Thursdays of each week and each alternate Sunday in accordance with the current order.
The mother has continued to comply with the orders for time spending, notwithstanding the change in her living arrangements and demonstrably, the father was unaware of the change in the mother’s primary living arrangements until her documents were filed at Court.
In summary, the father says that he has complied not only with the mother’s precondition for time spending to be varied, as contained in her original Application filed on 9 April 2020, but he has also complied with all orders of the Court and the time has now come for those orders to be revisited.
AVAILABLE EVIDENCE
Mr H reports
In looking at the available evidence with respect to the father’s compliance with orders and the father’s interaction with X and whether or not the Court should now move to lift the requirement for strict supervision, I have had regard to the reports of Mr H, Therapist. Those Reports are dated 15 May 2020, 9 September 2020 and 19 November 2020 and, finally, a Report dated 15 October 2020, respectively.
The father has attended numerous appointments with Mr H and it could not be said that his engagement with Mr H has been anything other than proper and at a level where the Court can be satisfied, even at this interim stage, that the father has undertaken his involvement with Mr H seriously in attempting to address the concerns raised by the mother in her earlier Affidavits.
Ms Miller invites me to make an order for the father to continue those appointments with Mr H so that he can continue to receive support from Mr H for as long as Mr H considers that those appointments are necessary and I intend shortly to make that order as invited.
Dr P report
I have also had regard to the Report of Dr P dated 18 May 2020. I note that that Report was completed very early on in the litigation. Dr P observed that Mr Madar has:
…a number of unhelpful personality traits. I note a history of anger and difficulties managing it ([Mr H] refers to this). He seemed very angry when I saw him and he was generally suspicious of people involved in the Court process.[7]
[7] See report of Dr P dated 18 May 2020 at 16.
Under the heading of ‘If any, treatment or management plan of diagnoses’:
Even though [Mr Madar] does not meet the diagnostic criteria for a psychiatric diagnosis I recommend he see [Mr H] or a psychologist with expertise in helping people manage angry feelings.[8]
[8] Ibid 17.
Dr P further opines:
I note [Mr Madar]’s anger appears to have been at its peak in the week after the separation. During this time he did and said some unhelpful things. The Facebook post that he made indicates he had difficulty managing anger and that he was vindictive. In my opinion, based on [Mr Madar]’s history, there is a low probability that [Mr Madar] would act out angry impulses that would create an unsafe situation for [X].
It would be appropriate for [Mr Madar] to have additional therapy and as he makes progress, time spending with [X] could be increased.[9]
[9] Ibid 20.
Finally:
If, the decision-maker, determines that [Mr Madar] did abuse [Ms McCormack] and if the decision-maker determines that [Mr Madar] did drive with [X] in the car when [Mr Madar] was under the influence of alcohol or cannabis, then a longer period of supervised time spending would be appropriate.[10]
[10] Ibid.
As was submitted by Ms Miller on behalf of the father yesterday, the father has attended 21 therapeutic appointments with Mr H, and he is prepared to continue those appointments pending trial if directed by Mr H to continue. I bring to account the opinion of Dr P in his report dated 18 May 2020 that, in his opinion, based upon Mr Madar’s history, there is a low probability that Mr Madar would act out on angry impulses that would create an unsafe situation for X, and I further note that the additional therapy as recommended by Dr P has taken place.
Children’s Contact Centre report
I have had regard to the Children’s Contact Centre Report dated 14 July 2021, annexed to the Affidavit of Mr Siklich filed 30 July 2021. By way of an overview, I can observe that there appeared to be no demonstrable difficulty with X’s interaction with his father at the Children’s Contact Centre. The observations of the supervisor through the service shows an affectionate and familiar relationship between X and his father, whereby X hugs his father and greets his father with smiles and a familiarity of their relationship.
The visit of 19 June 2021 was particularly telling when the Contact Centre Supervisor observes:
[X] ran to [Mr Madar] with open arms. [Mr Madar] greeted him with the same enthusiasm and they embraced… The father and son then engaged in play together in a very natural and familiar way.[11]
[11] See Children’s Contact Centre report dated 14 July 2021 at 8.
I am satisfied on the material provided by way of the Children’s Contact Centre that X has a strong and familiar relationship with his father and is comfortable in his father’s care.
Child Impact Report
I further have regard to the Child Impact Report dated 25 October 2021 wherein both formal and informal observations, as noted by Court Child Expert Dr T in his Report, that:
[X] felt sufficiently comfortable with the mother, her partner and [Mr Madar]. In this short observation timeframe, there was nothing immediately obvious in the interactions to suggest fearfulness or dysregulation in the presence of those adult caregivers.[12]
[12] See Child Impact Report dated 25 October 2021 at [11].
Further, Dr T observes that:
…also important consideration developmentally for [X] is that his relationship with his father has been under supervision for most of his life. For the purpose of this report, [Mr Madar] and [X] were in a room without a visible supervisor for the first time since [X] was [less than one year old]. Notably, [X] asked [Mr Madar] within two minutes of being along with his father, “Where’s grandma?” (Who is the supervisor for contact visits).[13]
[13] Ibid [28].
Dr T goes on to observe that:
The creation of episodic memories typically happens for developmental normal children from three years of age with prior memories lost to infantile amnesia. [X] will be three years old [soon]. This sets out a clear timeframe for [X] and a challenge for his parents going forward to create new, different and happy memories of his life in a separate family.[14]
[14] Ibid [29].
I infer from those comments that Dr T is referring to the fact that X needs to create new, different and happy memories of his life in his father’s care with his paternal grandmother not having to be present on each and every occasion that he sees Mr Madar.
In summary, therefore, the report of Dr T, Court Child Expert, does not raise any concerns with respect to X’s relationship with his father and, indeed, the Report from Dr T supports the contention made that it is time for the father’s time arrangements with X to be revisited pending trial so that he may develop episodic memories of more normal interactions.
APPLICABLE LEGAL PRINCIPLES
The Family Law Act 1975 (Cth) (‘the Act’) sets out specifically criteria that must be brought to account in making orders in the best interests of children.
Section 61DA of the Act prescribes that:
(1)When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[15]
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.[16]
(3)When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.[17]
(4) The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[18]
[15] Family Law Act 1975 (Cth) s 61DA(1).
[16] Ibid s 61DA(2).
[17] Ibid s 61DA(3).
[18] Ibid s 61DA(4).
In the circumstances of this case where there are clear allegations of family violence and where I am satisfied that the parents in this case are not capable of, at this stage, communicating with one another, I am satisfied that the presumption is rebutted at this interim stage and that it is inappropriate for me to exercise my discretion to make any order apportioning parental responsibility at this juncture.
Section 60CA of the Act prescribes that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.[19]
[19] Ibid s 60CA.
Section 60CC directs the Court to determine what is in a child’s best interests. Section 60CC(1) prescribes that:
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).[20]
[20] Ibid s 60CC(1).
Section 60CC(2) sets out the primary considerations, which are:
(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.[21]
[21] Ibid s 60CC(2).
Section 60CC(2A) directs that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).[22]
[22] Ibid s 60CC(2A).
Namely, this is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(3) sets out the additional considerations in making orders that are in a child’s best interests. In relation to those sections, I disregard section 60CC(3)(a) in relation to a child’s views, subsection (g) which relates to the maturity, sex, lifestyle and background of the child, subsection (h) that relates to children who are of Aboriginal and Torres Strait Islander heritage and subsection (l) in circumstances where this is an interim hearing and, demonstrably, further orders will need to be made on a final basis at trial or before trial if there are further interim proceedings.
In relation to the section 60CC(3) criteria of which I do take account, I refer specifically to section 60CC(3)(b), the nature of the relationship of the child with each of his parents.
In this case, X is still a little boy. His primary carer has been his mother, certainly since separation. There can be no doubt that his primary bond is with his mother, who has provided his day-to-day care since the date of separation.
The father has yearned to be a more involved parent. The nature of his relationship is quantifiably different to that of the mother, however, I am satisfied, given the evidence that I have referred to thus far in these reasons, that the father has a loving and appropriate relationship with X, as observed by the Children’s Contact Centre and, of course, observed by Dr T in the Child Impact Report.
Section 60CC(3)(c) refers to:
The extent to which each of the child's parents has taken, or failed to take, the opportunity
i)to participate in making decisions about major long-term issues in relation to the child; and
ii) to spend time with the child; and
iii) to communicate with the child.[23]
[23] Ibid s 60CC(3)(c).
In this case the father has, he would say, taken every opportunity to spend time and communicate with X. The child is still very young and there have not yet been up to this point any major decisions with respect to X’s long-term care, however, they are coming. I note the submission made by Ms Miller with respect to X’s future schooling and, of course, the concern raised quite properly by the father that the school to be attended by X may ultimately have a bearing on orders that will be made by this Court at a final hearing.
I, therefore, propose in my orders to restrain the mother from enrolling X at any school without the father’s consent or an order of the Court.
Section 60CC(3)(ca) refers to:
The extent to which each of the child's parents have failed to fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.[24]
[24] Ibid s 60CC(3)(ca).
In this case, the father has maintained the child to the extent available to him during his limited time spending up to this point, and I am advised by counsel for each of the parties that the father is now paying Child Support as assessed by the Child Support Agency. The mother has maintained X in all other respects, given her role as primary caregiver.
Section 60CC(3)(d) refers to:
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i) either of his or her parents; or
ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.[25]
[25] Ibid s 60CC(3)(d).
The father would argue that any effect to the change of X’s circumstances away from City B at this interlocutory stage would have a detrimental impact on his application to aspire to be a shared cared parent at final hearing.
The mother, for her part, says that once X is older and more independent, she promotes more regular time on an overnight unsupervised basis and that it is always open to the father to move closer to Town C or, alternatively, for a school to be selected for X at a midpoint between the parties respective residences such that there would not be any significant change in X’s circumstances.
X has certainly had a change of circumstance in moving from City B to Town C, but in all other respects he has remained in the primary care of his mother and the mother has complied with orders of the Court for time spending.
Section 60CC(3)(e) is the:
Practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.[26]
[26] Ibid s 60CC(3)(e).
This arises in circumstances where, if the mother is permitted to remain living in Town C, the father’s orders sought in his Amended Application in a Proceeding would, in effect, be rendered nugatory. The father has, however, in response to a query put by me, promoted an arrangement which would see him spending time with X each weekend so that the time can occur on a regular basis and with the mother undertaking all of the driving to and from City B to facilitate those time spending arrangements. The mother, in fact, promotes an order which will see her continuing with the drive to and from Town C and City B pending trial. That is an appropriate concession by the mother.
As Ms Pangallo quite properly conceded in her submissions yesterday, there is no dispute that the mother’s decision to relocate to Town C was a unilateral relocation. The mother says, however, that her proposal for time spending will not result in any dramatic reduction in the father’s time with X. The mother is now satisfied, based on the submissions made by Ms Pangallo, for five hour blocks to occur twice per week between X and the father.
I am comforted by the position put by the mother in relation to time spending in terms of the orders that I ultimately will make in relation to a progression of X’s time with his father and will use the mother’s own proposal as a starting point.
In relation to section 60CC(3)(f), which is the capacity of each of the parents to provide for the needs of the child,[27] the mother, of course, has undertaken and discharged this responsibility and has demonstrated a capacity to support X’s needs.
[27] Ibid s 60CC(3)(f).
The father would argue that the mother has not supported X’s ongoing relationship with his father to the extent that it should be supported, given the multitude of reports that are now before the Court.
The mother says, through her counsel, that she has good reason to be cautious, given that she has experienced family violence at the hands of the father, some of which was conceded by the father, in the period post-separation.
At this stage in the proceedings and noting that I am not in a position to make any findings of matters of contested fact, I refer to the Full Court decision of Goode & Goode.[28] I am unable to make any finding in relation to matters of family violence as they are pleaded in the parties’ respective affidavit material at this juncture.
[28] Goode & Goode (2006) FLC 93-286.
Turning to the attitude of each of the parents and the responsibilities of parenthood demonstrated.[29] Again, I repeat that the mother has demonstrated a responsible attitude towards the support of X, albeit that the father would argue that the mother has demonstrated a disregard for X’s relationship with him by moving to Town C.
[29] Family Law Act 1975 (Cth) s 60CC(3)(i).
Subparagraphs 60CC(3)(j) and (k) are relevant to the extent that family violence is front and centre an issue in terms of the mother’s involvement in these proceedings and her allegations of family violence arising from events which occurred both during the relationship and in the period post-separation. I further note that an Intervention Order was granted in favour of mother by consent on a final basis in early 2020.
Finally, any other fact or circumstance that the Court thinks is relevant.[30] This is a case that has now come into my theoretical docket. As I have advised counsel, I intend to move this matter forward to a final hearing. It seems to me that one of the difficulties for these parties has been that for a substantial period of time there has been no progression of X’s time spending with the father and no progression of this matter in any meaningful way through the litigation pathway. I propose to list this matter for Trial as soon as possible.
[30] Ibid s 60CC(3)(m).
EVALUATION
The mother in this case has now re-partnered, as she is entitled to do, having separated from the father in November 2019. The mother says in her Affidavit, filed 17 November 2021, that she was unaware of the need to seek permission of the Court to be able to relocate to Town C with X.[31]
[31] See mother’s Affidavit filed 17 November 2021 at [21].
The father views the mother’s relocation as a contrived exercise where the mother seeks to put the barrier, or tyranny of distance between himself and X, so that the father’s application for shared care will be faced with an insurmountable hurdle at trial.
I am unable, at this stage, to determine which of those arguments has merit. I do remind the parties, however, that this matter will remain in my docket and will be listed before me at final hearing. I will have a very clear recollection of the positions taken by each of the parties with respect to time spending and the relocation issue when the matter comes before me for trial in June of 2022.
The mother would have the Court understand that in maintaining the orders for supervision that a level of unacceptable risk remains in relation to X’s unsupervised time should this be ordered by the Court. That is how I assess the mother’s position at argument yesterday, although Ms Pangallo did not refer me necessarily to any relevant authorities that involve assessment of risk.
In the decision of Deiter[32] the Full Court said:
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.[33]
[32] Deiter & Deiter [2011] FamCAFC 82.
[33] Ibid [61] (per Finn, Thackray & Strickland JJ).
A useful summary of the law as it relates to unacceptable risk was also referred to by his Honour Judge Brown of this Court in the decision of Hartland.[34] In that case his Honour observed as follows:
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 in life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.[35]
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; 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.[36]
[34] Hartland & Hartland [2020] FCCA 937.
[35] Ibid [112].
[36] Ibid [113].
His Honour then goes on to refer to the Full Court decision of Slater & Light[37] where the Full Court 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.[38]
[37] Slater & Light [2013] FamCAFC 4 (per May, Strickland & Forest JJ).
[38] Ibid [37].
Based on all of the evidence before me for the purposes of this hearing and bringing to account the professional reports of Dr P, Mr H, Dr T and the observed interactions of the Children’s Contact Centre Report at City B, and noting that the father has been compliant with all orders of the Court to progress his time with X, I am satisfied that the time has now come for the strict requirement for supervision to be discharged.
In a moment, I will pronounce orders discharging the previous orders for supervision.
In relation to the application by the father seeking the mother’s return from Town C to City B, the father proposes that the mother move back to Town C and, if necessary, move in to reside with her parents.
The mother opposes the return to City B. She deposes that in 2021 she commenced employment with Employer AK as a professional on a casual basis.[39] Previously, the mother had been solely dependent on a sole parent pension. The mother’s employment is casual, currently undertaking 24 hours per week.[40] The basis of her employment is that she is expected to work at the Town C office with one day per week to be at their Town AL office, which is one and a half hours travel time. [41] The mother will also be dealing with clients based at Town AQ, which is approximately 50 minutes from Victoria, ‘Therefore, I need to be based in Town C’.[42]
[39] See mother’s Affidavit filed 17 November 2021 at [7].
[40] Ibid.
[41] Ibid.
[42] Ibid.
The mother anticipates that this position will be converted to a permanent position after a six‑month probation period is complete.[43] In the future, the mother hopes to progress her career at Employer AK and become a professional of the Town C office.[44]
[43] Ibid.
[44] Ibid.
In addition to the mother’s capacity to now work and provide an independent income stream for herself and X, the mother further deposes that she has formed a de facto relationship with a Mr E, and that they have purchased what she describes as a ‘property together’.[45]
[45] Ibid [12].
Mr E is a farmer who runs a family farm in Town C and, hence, the mother and Mr E propose to continue residing in the Town C area together as a couple. Settlement on the purchase of a home at Town C occurred in late 2021.[46]
[46] Ibid.
The mother’s initial Affidavit filed on 13 October 2021 suggested that the mother had moved to Town C, (she says a ‘country town’), and that she did not wish to specify the name of the town due to concerns for her safety. She deposes to having re-partnered and that she had commenced employment as a professional on a part-time basis.
It was the Affidavit filed on 17 November 2021 which now provides further and better particulars in relation to the mother’s embedment in the Town C community. The mother deposes that the property was purchased by Mr E in his own name, and it appears clear that Mr E provided all of the relevant funds necessary for the purchase of the Town C property. The Town C property remains in the sole name of Mr E both by way of secure mortgage and on the registered title.[47]
[47] Ibid [13].
The mother, however, as I understand the tenor of her Affidavit, considers that she has an interest in the Town C property and that she is also providing financial input by way of contribution towards the outgoings to the Town C property and to the household of herself and Mr E and, of course, the child, X.
It was on the basis of this position that Ms Miller, on behalf of the father, indicated yesterday that if the mother claims an equitable interest in the Town C property, then it will need to be the subject of further investigation by Mr Madar’s solicitors what, if any, of the mother’s equity in the Town C property should be included into the asset pool for division between these parties at trial.
The mother deposes that if she was forced to return to City B and leave Town C, then the following consequences would flow:
(a)She would lose her employment, which is the first employment she has been able to secure since X’s birth.[48]
(b)If she was to lose her employment she would have no means to fund any alternate accommodation.[49]
(c)She is still committed to assisting Mr E with their home, given that they purchased the house together as a family.[50]
[48] Ibid [28(a)].
[49] Ibid [28(b)].
[50] Ibid [28(c)].
Furthermore, I would understand the mother to be saying that if she was to return to City B, whilst not prohibitive of a relationship with Mr E, it would have an impact on the amount of time that they spend together.
The mother’s ongoing relationship with Mr E, and the impact of any time spending that they may have together, is not a factor that I bring to account in terms of the orders that I will pronounce today.
What I do bring to account, however, is the mother’s capacity to engage in employment and to work as a professional. I also bring to account the fact that the mother has undertaken and, by way of order, will be required to undertake all of the transport associated with X to and from City B and Town C. Furthermore, whilst the time spending during the mid-week will not be able to take place as a consequence of the distance and the mother’s work commitments, the orders that I propose making will provide for regular extended time between X and his father over weekends, which will enable X to enjoy a more natural experience of his father undertaking activities together.
The father works, and he also says that his need to work will be impacted by the mother’s proposal for time spending from 8:00am to 1:00pm on Wednesdays and Thursdays of each alternate week, I also bring to account the father’s need to engage in employment in circumstances where I will shortly craft orders that provide for the father to spend time with X each weekend as he proposes in the alternative to his primary position.
I am conscious that this will have an impact on the downtime that the mother has with X on weekends. However, X is going to turn three years of age. He currently does not have any educational or scholastic demands. The mother works 24 hours per week and at all other times, save for the periods when he sees his father, X is in the mother’s primary care.
Furthermore, the orders that are contemplated at this stage are not anywhere near the sort of shared care arrangement that the father aspires to, and the father himself did not promote overnight time for the purposes of this interlocutory round of proceedings.
Ms Pangallo referred me to the Full Court decision of Edgar & Strofield.[51] This was a case where the mother changed her residence from Town X, where she had been living, to City Y. Those places were 88 kilometres apart, involving travel time by car of about an hour. In paragraph 66 of the judgment Kent J observes that notwithstanding her change of locality, the mother in that case continued to facilitate the children spending the alternate weekend time with their father on the same basis as has had been occurring since September 2012.
[51] Edgar & Strofield [2016] FamCAFC 93; (2016) FLC 93-711 (per May, Murphy, Kent JJ).
In response to the mother’s change of locality, the father filed an Application seeking not only an injunction requiring the mother to return the children to Town X, but also a number of parenting orders, including orders for shared week about care.
At the interim hearing the central contentions and issues between the parties were as follows:
a) The mother contended:
i)Continued residence of the children in City Y, rather than Town X, would cause no impediment whatsoever to the children continuing to spend the alternate weekend time with their father that they had been spending since September 2012;
ii)That by moving to City Y, the mother had been able to take up employment as a resident nurse/carer, with the financial advantages of that for the children rather than her remaining reliant upon a single parent pension as she had been whilst living in Town X.[52]
[52] Ibid [8(a)]
The balance of the mother’s contentions are not relevant for the purposes of this decision.
The father contended at the interim hearing before Coker J that:
If the children remained living in City Y, it would not be possible for them to spend substantial and significant time with him or for a shared care (week-about) arrangement to be implemented.[53]
[53] Ibid [8(b)].
The father further sought that if the mother did not return to Town X that the children should live with him.
I pause here to note that there are similar parallels to the factual scenario in Edgar & Strofield as there are in this case, save and except the father does not seek an order that X live with him should the mother fail to return to the City B area.
At an interlocutory hearing, the primary Judge made orders that the children return to Town X, and that if the mother failed to return to Town X, that the children spend increasing time with the father or, ultimately, if she failed to return, that they live with the father.
His Honour determined that the mother, after a final trial of the issues, may well establish that it would be in the children’s best interests to live in City Y with the mother. Kent J observed:
However, it can be seen that whilst his Honour considered a final trial of the issues to be necessary to determine that proposal, his Honour considered that a final trial of the issues was unnecessary before the making of interim orders which fundamentally changed the children’s care arrangements to that point.[54]
[54] Ibid [13] (per Kent J).
The mother appealed the primary Judge’s decision and one of the grounds of appeal was the fundamental contention that the Judge’s focus had been upon the case as a relocation case ‘so‑called’, when the real issue before his Honour was the amount of time the father would spend with the children on an interim basis in the context of the respective proposals of each party and the historical care of arrangements.[55]
[55] Ibid [26].
Kent J on behalf of the Full Court determined that primary Judge had been distracted by the issue of ‘relocation’, rather than focusing upon the competing proposals of the parents in the circumstances as they existed at the time of the hearing in the context of the undisputed history so far as the appropriate interim care arrangements for the children were concerned.[56]
[56] Ibid [29].
As I say, there are a number of parallels in relation to the decision of Edgar & Strofield as it relates to this matter at an interim hearing. I am conscious of the need for me to not fall into error such as to be distracted by the concept of this being a relocation case, as opposed to a time spending case, as the Full Court had found in the earlier decision.
I further remind counsel that the issue of relocation is a matter that can be pursued at a final hearing. Indeed, there are decisions where the issue of relocation on a final basis is very different to what had been ordered by the Court on an interim basis.
I refer counsel to the decision of Vaughton & Randle,[57] where the Honourable Justice Berman ordered the return of a child who had been in the primary care of the mother living in Tasmania at final hearing. In short, in the decision of Vaughton & Randle, notwithstanding the fact that by the time of trial the mother had been living in Tasmania for a number of years, the Court determined that the mother and child should return to reside in Adelaide, South Australia so that the father could spend expansive time with his son.
[57] Vaughton & Randle [2014] FamCA 147 (per Berman J).
The mother should be under no misapprehension with respect to the issue of relocation at trial and that this decision does not predetermine the issue. I am cognisant of not being distracted by the ‘relocation issues’ as enunciated by the Full Court decision of Edgar & Strofield. This is particularly so in circumstances where:
(a)The mother has been the undisputed primary caregiver of X.
(b)Where the mother has complied with orders of the Court in relation to time spending.
(c)Where the mother as now obtained employment which will support her financially as an individual in the same manner as the father has achieved.
I therefore decline to order on an interim basis that the mother return X’s primary place of residence to the City B area.
Further, I am satisfied that the requirement for strict supervision is no longer required and that order should be discharged. I have found that it is time to increase X’s time spending with his father, but it will have to occur on weekends in circumstances where the mother wishes to remain living in Town C and the father is required to work during the day on weekdays.
I have permitted the mother to remain living in Town C on an interim basis only pending trial, given that a final hearing will be in approximately six months and given that the mother has complied with the orders and has secured employment. This is in circumstances where I am satisfied that the orders for time spending each weekend between X and his father will be sufficient to maintain a meaningful relationship.
CONCLUSION
For all of these reasons, I make the order set out at the commencement of these reasons.
I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 3 December 2021
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