Maddison and Maddison

[2016] FCCA 2712

FEDERAL CIRCUIT COURT OF AUSTRALIA

MADDISON & MADDISON [2016] FCCA 2712

Catchwords:
FAMILY LAW – Interim arrangements for children – children previously resident in Adelaide in care of mother – mother has unilaterally relocated children to Western Australia – allegations of family violence – father asserts he has strong relationship with children – no proposals as to how children may interact with father – best interests.

Legislation:

Family Law Act 1975, ss.4A, 4AB, 60CC, 61DA

Cases cited:
In the marriage of Patsalou (1994) 18 Fam LR 426
Morgan & Miles [2007] FamCA 1230
C & S [1998] FamCA 66
U v U (2002) FLC 93-112

Applicant: MR MADDISON

Respondent: MS MADDISON

File Number: ADC 1590 of 2016

Judgment of: Judge Brown

Hearing date: 28 July 2016

Date of Last Submission: 28 July 2016

Delivered at: Adelaide

Delivered on: 28 July 2016

REPRESENTATION

Counsel for the Applicant: Mr Lewis

Solicitors for the Applicant: Legal Services Commission

Counsel for the Respondent: Ms Lee

Solicitors for the Respondent: Adelaide Family Lawyers

ORDERS

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. The children X born (omitted) 2005, Y born (omitted) 2006 and Z born (omitted) 2008 live with the mother.

2. Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children X born (omitted) 2005, Y born (omitted) 2006 and Z born (omitted) 2008 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

3. Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

4. The mother return the children to live in the metropolitan area of Adelaide no later than 30 September 2016.

5. In the period of the adjournment the independent children’s lawyer when appointed is authorised to request the father to undergo no more than three (3) random supervised drug screen tests.

6. 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 1 November 2016.

7. 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.

8. 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.

9. 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.

10. 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/ren 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.Section121 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.

1. Pursuant to section 69ZW of the Family Law Act, Families SA and the South Australian Police are ordered to provide to the court on or before 25 August 2016 the following documents:

   (a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

   (b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

   (c)any reports commissioned by the agency in the course of investigating a notification.

2. The father continue to have telephone contact with the children each Saturday at 5:00pm (South Australian time) with the mother to telephone the father’s mobile and put the children on the telephone.

3. Further consideration of the matter is adjourned to 14 October 2016 at 9:30am for directions and to see how the interviews for the family report are progressing and determine any future arrangements for the children to spend time with the father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1590 of 2016

MR MADDISON

Applicant

And

MS MADDISON

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally following the interim hearing concerned.  Given the controversy arising in the case, it is appropriate that they be transcribed.

2. This is a problematic case, which presents no easy solution at the interim stage.  Whatever happens, one of the parties will feel bitterly disappointed and feel that the decision is wrong and contrary to the best interests of the children whom the decision primarily affects. 

3. It concerns what lawyers call a unilateral relocation.  That is, one of the parents of the children concerned has moved hastily far away from the other parent concerned. 

4. The parent left behind complains that this action, about which he or she was not consulted, will do irreparable damage to his or her relationship with the children concerned which has hitherto been close and loving. 

5. On the other hand, the parent who has left asserts that he or she had no choice but to move quickly and secretly to escape an untenable domestic situation, more often than not characterised by family violence.

Background

1. Mr Maddison and Ms Maddison are the parents of X, aged 11, Y, aged 10, and Z, aged eight.  The three children are currently asserted to be in Perth in the care of their mother.  Previously, although the exact circumstances are disputed, they lived in suburban Adelaide.

2. There is no dispute that Mr Maddison was not consulted about the move and if he had been would not have agreed to it.  As a consequence of the move, he has not seen the children or interacted directly with them for a period now approaching six months. 

3. It is his case that the children’s habitual place of residence has been suburban Adelaide and the children should return to Adelaide until the mother’s wish to move to Western Australia with the children has been finally sorted out by the court and all relevant evidence collected and examined.

4. The parties have known each other for a very long time.  They agree they commenced a relationship in 2004 and married in (omitted) 2005.  However, they disagree fundamentally as to when they finally separated. 

5. The father asserts that it was fairly recently in late 2015.  The mother asserts that it was some time ago in August 2013.  Mr Maddison says that after separation he and Ms Maddison had an amicable relationship and he saw the children daily at their home in (omitted) in the suburbs of Adelaide.  The mother does not agree that the separation was friendly in any way.

6. Mr Maddison also asserts that unbeknownst to him, Ms Maddison obtained an ex parte injunction order against him as a means of exercising leverage over him in respect of arrangements for the children, particularly to augment her unilateral relocation. 

7. In this context, he asserts that in early February 2016, he attended at the mother’s home as usual but found it locked up and abandoned.  Later a relative of the mother gave him to understand that the mother and the children had gone to (omitted) Western Australia but Ms Maddison did not contact him to advise where she had gone with the children.  He has not seen them since.

8. Mr Maddison obtained Legal Aid and commenced proceedings on 29 April 2016.  His application was first listed on 21 July 2016.  The delay is not attributable to him.  It is reflected, I suspect, on pressures on both Legal Aid and the court system itself. 

9. Because he did not know the whereabouts of the mother and children initially Mr Maddison sought what is called a Commonwealth information order.  That is an order directing Centrelink or a government instrumentality to inform the court as to the whereabouts of the child or children. 

10. Accordingly, from Mr Maddison’s point of view the three children disappeared off his personal radar and he had absolutely no idea where they were, and Ms Maddison herself was disinclined to tell him.  From Mr Maddison’s perspective it was a crisis and he feared that he might not engage with the children for a very long time indeed.

11. On 28 June 2016 Ms Maddison responded to the application.  She contends that initially she went to (omitted) with the children to stay with her brother.  More recently she asserts she has moved to suburban Perth.  It is her case that she and the children are well-settled in Perth and happy there. 

12. On 21 July, when the matter first came before me, I ordered that the children have telephone communication with their father on the following Saturday.  It is the father’s evidence that when he spoke to the children they told him that they were still in (omitted).  It is his case that Y in particular was very emotional and expressed concern that he had not seen his dad for some time.  As is self-apparent, Ms Maddison does not want to return to Adelaide.

13. As I say, there is a conflict between the parties as to whether Ms Maddison and the children are in either (omitted) or Perth.  I have not been provided with extensive information regarding the mother’s whereabouts other than that she deposes that she is currently living in Perth.  The children are all settled at school and have all the necessary supports to assist them in the classroom.  It is also asserted that the children are attending psychological sessions.

14. I ordered on 15 July, which is the date when the matter first came before me that Mr Maddison undergo a drug screen test.  The matter was then adjourned to 21 July for that test to be provided.  It has not happened as yet.  I am told that there has been difficulties getting funding for the test and that it has now occurred but I do not have the result. 

15. On 21 July 2016, Ms Fuda who was then counsel for the mother indicated that in her brief she had some documents apparently from the children’s school in Western Australia.  They had been redacted so far as the name or location of the school was concerned. 

16. I thought that I was entitled to have some illumination placed on whether it was (omitted) or Perth, given the controversy between the parties.  Ms Fuda indicated that she would make inquiries with her instructor.  That was a week ago and nothing has transpired.  Accordingly, in this very difficult and problematic case, two objective and independent tools for assessing the problems in the case have gone unheeded. 

17. Firstly, whether Mr Maddison is still using amphetamines as has been alleged.  I appreciate that a supervised drug screen test is a blunt tool to assess that.  On that basis, I ordered a test when perhaps Mr Maddison would not have been expecting it when the case first came into court. 

18. I appreciate that he is disadvantaged in many ways and it is likely to be difficult for him to get money for the test and then go and see the right person and agitate enough to get it done expeditiously.  But be that as it may it has not been done. 

19. Secondly, it seemed to me that the whereabouts of the children was also a relevant consideration.  If Ms Maddison was prepared to be disingenuous on oath it seemed to me that I might have some difficulties with her credibility overall.  This was significant given that the parties fundamentally disagree about many salient factual issues.

20. At the end of the day, Ms Maddison’s solicitor has been funded by the Legal Services Commission for this matter when ordinarily it is the policy that individuals who relocate unilaterally should not be funded.  So again I do not have that information and from my perspective, it should be fairly easy to find out because Ms Hurst, Ms Maddison’s solicitor, could easily telephone her and ask her but it has not occurred.

21. So I must deal with the matter as best I can.  As I say, Ms Maddison does not want to return to Adelaide.  She is in receipt of social security and I have been told by her barrister that it is her position that it will cost her significant funds to break her lease wherever it is and she does not wish to do that. 

22. Mr Maddison is in the same boat.  He is currently unemployed and has no savings.  As such, he cannot easily go to Western Australia.  He is fearful that he is in the process of losing his relationship with the three children whom I accept he deeply loves.  As such, he contends that it cannot be in the best interests of the children to lose a loving relationship with their father. 

23. It is the case that given the distance between Perth, (omitted) and Adelaide and the parties’ mutual lack of funds, it will be close to impossible for Mr Maddison to maintain a meaningful level of relationship with X, Y and Z if they remain in Western Australia and he remains in South Australia. 

24. The children will go through their teenage years quite possibly without knowing their father and having a paternal role model in their lives.  It is Mr Maddison’s case that the court cannot tactically endorse such an outcome by approving the mother’s obviously unilateral action at this stage.

25. The mother’s case is that over the past three or four years she has been subject to constant harassment by Mr Maddison.  She asserts that Mr Maddison has an addiction to methamphetamines and is dangerous and emotionally unstable.  Needless to say, that was the reason why I ordered a random drug screen test in respect of Mr Maddison. 

26. Essentially the mother says that Mr Maddison did not accept that Ms Maddison had left the relationship and separated from him in 2013 but rather constantly came to her home uninvited.  When he arrived she asserts he frequently verbally abused her and, in one occasion in July 2014, assaulted her by twisting her arm, causing her to fall over and blackout.  Ms Maddison asserts that she was badly bruised as a result of this incident. 

27. I am not in a position to say whether the incident happened as Ms Maddison describes it.  The reality is that family violence invariably happens where no one is available to see it who is independent of the parties concerned and objectively able to report what happened.  Medical treatment is not always sought and people just get on with their lives.  The fact remains, however, that at present there is no independent verification of that matter.

28. Ms Maddison says that later in 2014 the father broke into her home.  She says that this led to his arrest and a remand in custody and an intervention order.  Following the father’s release it is Ms Maddison’s case that Mr Maddison spent informally supervised time with the children at his sister’s home.  In respect of these matters Ms Maddison deposes as follows:

    The children attended at the paternal aunt’s home for supervised time spending which lasted for six weeks and the children informed me that the father seemed to be off the drugs and rehabilitated.  I therefore dropped the charges against him and had the intervention order removed in February 2015.  I then moved back in with him in an attempt to reconcile with him but after two weeks I realised he had not stopped using illicit drugs and that nothing had changed so I left again with the children. 

    I say that the father then commenced stalking the children and me and would never leave us alone.  He slept in his car at the back of my home.  He broke into our house all the time and would wake the children up.  I reported some of these incidents to police and this behaviour continued until October 2015.  I did not apply for another intervention order at that time because I was frightened of the father and what he might do.

29. So accordingly, from the mother’s perspective the parties’ turbulent relationship is marked by break ups following incidents of violence, then reconciliations, no doubt for the sake of the children and the hope that things will get better, the instigation of charges and police intervention orders which are then resiled from.  As is well-known – and I am not critical of Ms Maddison without hearing further from her – this is a common dynamic where the individuals concerned are locked in a violent and abusive relationship.

30. Thereafter the mother says that she applied for an ex parte intervention order which was issued by a court in October 2015 but not served on the father for a period of time.  As far as I know, that intervention order is still in currency.  The background of that intervention order is that in October 2015 the mother says that there was an extremely serious incident of violence which involved her and the children. 

31. She alleges that whilst under the influence of drugs, the father drove his car at her and the children.  However, she says the father stopped the vehicle at the children’s urging and shouting so fortunately no one was physically injured. 

32. But it is Ms Maddison’s case that everyone was terrified and this incident is emblematic of the picture she paints of Mr Maddison who she portrays as a person who is out of control, who has no regards for court orders and uses violence to intimidate others, particularly her.  She further alleges that the father has indicated in respect of intervention orders that they are just pieces of paper and will have no effect on him. 

33. Against this background in February 2016, Ms Maddison says that at the urging of the children she decided that she and they had to have a break from Mr Maddison’s constant harassment and unpredictable and violent behaviour.  She says that after a period in (omitted) she moved to Perth where she as I say, asserts that she and the children are now well-settled.

34. Putting aside the dispute about whether it is (omitted) or Perth, as I have already indicated, given the distance between the two locations and the parties’ respective financial positions, to all intents and purposes, Ms Maddison and the children could be living in another country and it would be I think Mr Maddison’s case that given what Ms Maddison has done it can be inferred that she has no intention of supporting any relationship between the children and their father.

1. Ms Maddison asserts that all the children particularly X, have been traumatised by their father’s behaviour over many years since he started using ice.  X is a child who has some very significant special needs.  She has insulin dependent diabetes which allegedly is exacerbated by stress in the sense that when she is stressed she does not eat properly and this has implications for her blood sugar levels.  She has also been diagnosed with Asperger’s Syndrome and asthma.  Y apparently suffers from dyslexia and has an auditory processing disorder.

2. Interestingly – and it is I think an interesting concession – Ms Maddison does not exclude all possibility of the children having a relationship with the children.  She deposes as follows:

   I say that after leaving for (omitted) I advised the father by email that he should use this time productively to seek help for his ice addiction and get his life back on track so he could engage with the children at some point in the future when they were emotionally capable of doing so.

3. Again, in the period of the adjournment, I invited Mr Maddison and those advising him to prepare perhaps some more affidavit evidence regarding the allegations that have been made against him.  Nothing has been forthcoming.  

4. Accordingly, I do not know whether Mr Maddison has any intention of doing anything about his alleged amphetamine addiction, whether he is going to seek any form of counselling and, as I say, I still do not have the drug screen test. 

5. Notwithstanding her position that if Mr Maddison from her perspective does something about his drug addiction, Ms Maddison does not have any firm proposals for the father to spend time with the children other than as the parties agree or the court orders. 

6. At this juncture, given the situation, the parties are unlikely to be in a position to be able to agree anything and against this background it is difficult for the court to know what is the best option for the family concerned given the plethora of known unknowns which the case throws up.

7. X has been seeing a psychologist and has been for some time, and I have a report from her.  Her name is Ms M and she is a psychologist who is associated with Headstart.  Ms M has been apparently been treating X since April 2012, including since she moved to Western Australia over the telephone.  Ms M describes X as a mature and thoughtful child who presented as having been exposed to many adult stresses.  Undoubtedly this must be the case. 

8. X was open with Ms M in speaking about her parents’ fighting, their separation and her father’s behaviour regarding his drinking, anger and hurting Ms Maddison.  She reported to Ms M that this had caused her anxiety, anger and stress.  X told Ms M that she bottles up her anger but it explodes and she takes it out on those close to her including her mother.  She expressed that she is angry at her father but, interestingly, she stated that she loves him and misses him, but she says she is scared of him.

9. Accordingly, Ms M’s report assists to some extent both the father and the mother.  It assists the father in that it demonstrates that although it is a relationship under stress, X loves her father and misses him.  Significantly, it also supports the mother’s position because Ms M reports that X over the telephone has appeared to be less stressed and more happy since she has moved to Western Australia.  She is still perplexed by the uncertainty of her situation. 

10. Given this, Ms M is concerned that if X is forced to return to Adelaide this will ratchet up her anxiety and stress, and that will not be good for her and, in this context, Ms M opines that she needs time working with X to support her if she is to have any re‑engagement with her father. 

11. As this summary indicates, this is a complex, multifaceted case with many unresolved issues and problems.  At this stage I have little independent evidence if any at all, apart perhaps from Ms M, with whom Mr Maddison has never consulted.  The position of the parties are polarised in the extreme and it is impossible for me to make any concluded findings of fact.

12. Yet, notwithstanding these difficulties, I have to make a decision.  As the parties will be aware the case arises at an interim stage and at this interim stage I do not have time for either the proper examination of evidence from each of the parties, and there has not been time to prepare any independent assessment of the children’s needs and their relationship with their parents through the form of an independent family assessment.

13. At the interim stage necessarily the court is placed in a dilemma.  To a certain extent it has to triage the case and put in place orders which it believes will assist either the court itself or possibly the parties to reach some concluded position in respect of the matter.  This necessarily is an early stage in the case.  That is the nub of it.  

14. Mr Maddison says that if the court makes the orders Ms Maddison wants it to make that will mean that there will be no real necessity for having an exhaustive final hearing regarding the relocation issue because it will have been effectively decided without any input from him and this will be unfair.

15. From his perspective the reality of this situation will be that the children will not have any relationship with their father quite possibly for many years, and quite possibly for the remainder of their childhood.  From his perspective, the court is playing with high stakes.

16. From the mother’s position, she reacted to an intolerable situation and acted as she saw it for the best, moving with the children interstate.  Essentially she says it will be diabolically difficult for her to return to South Australia and it will recast the children into turmoil.  Mr Maddison no doubt asserts that if Ms Maddison had the money to go she can get the money to return. 

Legal Principles Applicable

1. Although this is the interim hearing stage, the same principles apply at the interim stage as apply at the final hearing stage.  Whatever I do, I must be satisfied that it is in the best interests of the two children concerned.  That is, I would contend, self-apparent. 

2. However, how I am to determine what is in the best interests of the child or children concerned is legislatively mandated, principally by section 60CC of the Family Law Act. That section contains what are called primary considerations and along the list of additional considerations.

3. Turning to the primary considerations first, there are two of those and, again, those considerations are emblematic of the difficulty in this case.  Firstly, I have got to think of the benefit to the children concerned of having a meaningful relationship with both of their parents, and, secondly, I have to consider the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

4. In the past these two considerations have been referred to as twin pillars. That is not quite the case now because, as a consequence of some amendments to the Family Law Act particularly section 60CC(2)(a),

5. I am now directed to give greater weight to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. 

6. So Ms Maddison, I think, would contend that because of the circumstances as she outlines them, I am required to give greater weight to the protective concerns which she raises than to the benefit of the children having a meaningful relationship with both of their parents.

7. However, I do not think I can ignore that first consideration and the difficulty in this case is that I accept that, as matters currently stand, the children at this stage do not have any level of relationship with their father at all let alone a meaningful one.  The children simply cannot maintain a relationship with their father over a weekly telephone call. 

8. “Family violence” is defined by section 4AB (1) of the Act. It means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.

9. The legislature has provided a list of examples of behaviour and some examples are an assault, repeated derogatory taunts, and stalking.  Accordingly, family violence means not only violence which causes a family member to be fearful as a consequence of a direct assault to that person, but also it encompasses behaviour that unreasonably coerces or controls that person.

10. Pursuant to section 4AB (3), a child is exposed to family violence if he or she sees or hears family violence or otherwise experiences the effect of family violence. 

11. If Ms Maddison’s evidence is credible, the behaviour of which she complains undoubtedly falls within the characterisation of family violence as provided by the Act.  She says that she has been rendered fearful and she feels controlled by Mr Maddison’s behaviour.  If Ms M’s opinion is correct, it also seems to be undoubtedly the case that X has been exposed to family violence. 

12. Where family violence is endemic in parental relationships, it has the potential to be damaging for children in a variety of ways.  Most obviously, children may be directly hurt by an episode of violence and certainly frightened by it, particularly if they see a much loved parent being threatened or assaulted. 

13. More subtly, children learn their behaviour from their parents and parents who use violence to resolve disputes or who act out their emotional dysregulation are not appropriate psychological role models for children.[1] So I am required to give greater weight to the very serious matters of family violence which Ms Maddison has raised. 

    [1]See In the marriage of Patsalou (1994) 18 Fam LR 426.

14. The difficulty, of course, is that there is controversy about how serious that behaviour was and whether it was a proportionate response to that behaviour for the mother and children to move several thousand kilometres away from the father when, at least in theoretical terms, there were avenues to protect the mother and the children available to her in Adelaide, which would not automatically result in the severing of a potentially beneficial relationship for the children. 

15. It is, I think implicit in Mr Maddison’s case that for Ms Maddison to relocate to Western Australia with the children that it represented a disproportionate response to the various issues raised between them, particularly given that Ms Maddison could, as she had done before, seek protection from the police and, indeed, from this court.  The difficulty of her position is that she has acted unilaterally and, in effect, presented both Mr Maddison and the court with a fait accompli.  [2]

16. As a matter of public policy, I think, courts have to be careful before they endorse such unilateral action.  Certainly that was the view taken in a number of cases, which are invariably cited in proceedings such as these.  The cases are as C & S,[3] a decision of Warnick J, and more recently a case of Boland J, Morgan & Miles.[4]

    [3] C & S [1998] FamCA 66

    [4] Morgan & Miles [2007] FamCA 1230

17. In Morgan & Miles Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage.  Her Honour 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 at an abridged interim hearing, and these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis.  It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases.

18. Essentially Warnick J asserted that issues to do with the care and parenting of children should be determined, wherever possible, on a level playing field, not one skewed to the advantage of one parent who had acted unilaterally or in self-interest.  These comments are particularly apposite to cases involving unilateral relocation.

19. The mother’s case is that she was reacting to an emergency situation and acting to protect the children.  The problem with that is that her action, although perhaps unjustifiable in the short to medium term, has the potential to have longstanding and detrimental consequences for the children.  From the father’s perspective it is unfair to him and, as I say, potentially detrimental to the children to deprive them of having a father in their lives, perhaps for a very, very long period of time.

20. Moving to the additional considerations, they are numerous.  The wishes of the children are likely to be controversial.  Ms M says X wants to stay in Perth, and certainly that would be the mother’s view in respect of all of the children.  In my view, the proper way to assess what the children’s views are is to either have a family report or arrange for their independent representation. 

21. I have to think of the nature of the relationship the children have with each of their parents and other persons including grandparents and other relatives.  On the basis of Ms M’s evidence and Ms Maddison’s own concession that if the father is not taking amphetamines he is a good father or at least has the potential to be a good father, it would seem that the children have a relationship with their father.  No doubt it is currently under great stress.  Certainly, the children know their father well, so this is likely to be a central relationship in their lives.

22. At this stage it is difficult for me to assess the effect on the children of being separated from one of their parents.  Again, this has come about because of the mother’s unilateral actions.  The practical difficulty and expense of the children spending time with their father and communicating with him certainly face to face in the present circumstances must be great.  That will have implications for the children’s right to maintain personal relations and direct contact with both their parents on a regular basis.

23. What is the capacity of each of the parents to provide for the children’s emotional and intellectual needs is uncertain to me at this interim stage.  I have already discussed at some length issues to do with family violence which are at the nub of this case. 

24. In my view, this is an extremely difficult and finely balanced case.  It is trite but true that cases where a parent takes things into his or her own hands make for difficult decisions which have the potential to have unknown consequences.  On the balance, I have come to the conclusion that Ms Maddison’s actions were disproportionate to the situation which prevailed to her.

25. At the end of the day, I have come to the conclusion that it is a matter of public policy that the court should not easily approve or rubberstamp, after they have happened, the unilateral actions of parents.  This difficult process involving allegations of a volatile relationship which is exacerbated by issues of financial and economic disadvantage is, in my view, better managed if the parties and children are in the same jurisdictional area.  I do not think it can be managed if one party is in Western Australia with the children and one is in South Australia. 

26. I am well‑aware of other issues in this case.  As Gaudron J expressed in U & U,[5] it may be inherently sexist to say to a mother that she has to move back or be restrained in moving when another parent, invariably a male, could move to where she is.  Mr Maddison says he has not the money to go to Western Australia and it would be unfair to make him go given who left the state in the first place.

    [5] U v U (2002) FLC 93-112

27. In my view, this case needs careful management.  An independent children’s lawyer should be appointed and an urgent family report be prepared.  In this case, clearly it is not one to which the presumption of equal shared parental responsibility applies, but that does not mean that I should not consider the long-term best interests of the children, particularly the desirability of them having some form of relationship with their father.

28. Relocation cases are difficult.  They are difficult because they concern competing claims of right:  the right of an individual to live where he or she wants and lead the life of his or her choosing; and the right of children to know and be cared for by both their parents.  In relocation cases invariably these considerations come into conflict. 

29. Every relocation case is difficult and requires idiosyncratic consideration.  There has been no such idiosyncratic consideration of Ms Maddison’s relocation.  In my view, that is really the precipitating factor which has led me to the conclusion that the children need to come back. 

30. As I indicated, I will give Ms Maddison time to put her affairs in order which will also give Mr Maddison time to consider his position and what he is going to do about his life.  I do not propose that the children come back until the end of the third term holiday in Western Australia.  I am also, as I say, going to order the family report be prepared. 

31. This is the type of case, given that it is likely for the children to be expressing strong views, that they be independently represented, and it is also likely to be the case that they will benefit from having an independent person who can gather evidence independently of his or her parents.

32. The mother’s position was that I should not order her return from Adelaide until such time as she had had an opportunity or the court had had opportunity to gather material from the police and Families SA pursuant to section 69ZW.

33. I am going to make an order pursuant to section 69ZW but, in my assessment, it sort of begs the central issue in this case regarding the mother’s unilateral action that she asserts that the court should not deal with that until such time as it has gathered more information. In my view, the two things can be dealt with. So for those reasons, I am going to order as follows.

34. I am going to adjourn the matter when it is anticipated the children will have returned to Adelaide and details of the progress of the family report elicited.  I propose adjourning the proceedings to 14 October 2016.  At that stage I anticipate each of the parties will have filed further material and I can assess ongoing arrangements for the children to spend time with their father if appropriate. 

35. So, for those reasons, the orders I am going to make are as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:      27 October 2016