McAllister and Day
[2012] FMCAfam 863
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MCALLISTER & DAY | [2012] FMCAfam 863 |
| FAMILY LAW – Interim arrangements for care of child aged eighteen months – unilateral relocation of child from the (omitted) to rural South Australia by mother – mother seeks orders for child to live with her in South Australia – father seeks transfer of proceedings to Brisbane Registry of the Court and the return of the child to Queensland pending final hearing – mother alleges father has behaved in a coercive and violent manner towards her and in the presence of the child – consideration of the need to protect child from further exposure to family violence – consideration of how child may benefit from having a meaningful level of relationship with father – weighting of primary considerations under section 60CC(2) – implication of reordering of priorities by reason of amendments to the Act made by Family Law Legislation Amendments (Family Violence and Other Measures) Act – best interests – considerations relating to freedom of movement – Court’s duty to respond expeditiously to allegations of family violence. |
| Family Law Act 1975, ss.4AB, 60B, 60CC, 60CG, 61DA, 65DAA, 67Z, 67ZBB, 68B, 68C |
| Goode & Goode (2006) FLC 93-286 C & S [1998] FamCA 66 D and S V (2003) FLC 93-137 Morgan & Miles (2007) FamCA 1230 Blanch v Blanch & Crawford (1999) FLC 92-837 |
| Applicant: | MS MCALLISTER |
| Respondent: | MR DAY |
| File Number: | ADC 2585 of 2012 |
| Judgment of: | Brown FM |
| Hearing date: | 13 August 2012 |
| Date of Last Submission: | 13 August 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 20 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Furtado |
| Solicitors for the Applicant: | Family Violence Legal Service |
| Counsel for the Respondent: | Mr Senior |
| Solicitors for the Respondent: | Corporate & Property Lawyers |
ORDERS
The proceedings herein be transferred to the Brisbane Registry of the Federal Magistrates Court and be listed for directions before a Federal Magistrate of that Registry on a date to be appointed by the Court following 14 September 2012.
The children X born (omitted) 2011 and Y born (omitted) 2006 be independently represented in these proceedings and to this end the Director of the Legal Aid Commission of Queensland is requested to make appropriate arrangements for the representation of these children as soon as is reasonably practicable.
A copy of these reasons for judgment be provided to the Director of the Legal Aid Commission of Queensland as soon as is reasonably practicable.
Each party provide to the Director of the Legal Aid Commission of Queensland copies of all affidavits filed in the proceedings to date.
Pursuant to section 62g of the Family Law Act a family report be prepared in this matter as a matter of urgency.
Within twenty one (21) days of the date of these orders the mother return the child X to an area within a radius of twenty (20) kilometres of the (omitted) Police Station in the state of Queensland.
The father provide to the mother the sum of one thousand dollars ($1000.00) within fourteen (14) days of the date of these orders and the order for the mother to return the child to Queensland pursuant to the provisions of order (6) hereof is conditional upon the father providing this sum to the mother.
UNTIL FURTHER OR OTHER ORDER
The child X born (omitted) 2011 live with the mother.
Each party enrol in the (omitted) Children's Contact Service and undergo all necessary intake procedures to ascertain their suitability to take part in both the change over and supervised program offered by the (omitted) Children's Contact Service within twenty eight (28) days of today’s date.
Pursuant to section 68B of the Family Law Act an injunction issue and the father be restrained from entering or remaining in any place of residence, employment, or education of the mother or the children herein or otherwise approaching the mother or harassing, molesting or stalking her or causing or threatening to cause her bodily harm.
It being noted that if a police officer believes, on reasonable grounds, that the father has breached the injunction set out in order (10) hereof such police office is authorised to arrest the father without warrant pursuant to the provisions of section 68C of the Family Law Act 1975.
IT IS NOTED that publication of this judgment under the pseudonym McAllister & Day is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2585 of 2012
| MS MCALLISTER |
Applicant
And
| MR DAY |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms McAllister “the mother” and Mr Day “the father” are the parents of X born (omitted) 2011. Necessarily X’s relationships in life are not yet fully formed. He is a child of tender years, who is developing from day to day.
The parties have never been married. They met in (omitted), in Queensland, at some time in 2009. They began to live together in 2010 and moved to the (omitted) together. X was born at the (omitted) Public Hospital.
X is the only child of the parties’ relationship. However, the mother has another child. She is Y born (omitted) 2006. The mother separated from Y’s father in 2008 and he has not seen the child since that time.
Between 26 July 2011 and 23 December 2011 Mr Day was in custody as a result of having been convicted of cultivating and possessing cannabis. Following his release from prison, he is on parole until July of 2013.
There is no dispute between the parties that their de facto relationship came to an end on 14 June 2012, when the mother, X and Y left the former family home situated at Property M.
On 17 June 2012 the mother and the two children drove from the (omitted) to (omitted), which is approximately 14 kilometres to the east of (omitted) in South Australia. There is no controversy between the parties that the mother did not have the father’s approval to relocate X to South Australia and, in this sense, the mother’s move is to be characterized as a unilateral one.
The mother’s cousin, Ms H lives in (omitted) with her husband and two children. Ms McAllister’s father lives in (omitted), which is a five hour drive away. Her mother continues to live in (omitted).
The mother’s position is that she had no viable alternative other than to flee a violent and destructive relationship with Mr Day, to which X and Y had been exposed, other than to flee to family members with whom she felt safe and secure. In this regard she chose her cousin in South Australia.
The father’s position is that the allegations of violent behaviour levelled against him are fabrications. In addition he asserts that, in any event, for the mother to move many hundred kilometres interstate was not a response commensurate to the degree of threat he posed to Ms McAllister, Y and X in all the circumstances of the case, when objectively considered.
In particular, Mr Day submits that, given he is subject to patrol conditions, if he had threatened or assaulted Ms McAllister, as she has alleged, he would have been subject to revocation of parole and immediate incarceration, which would have provided complete protection to both the mother and the children concerned.
Given X’s tender years, it is further Mr Day’s position that, if X remains indefinitely in (omitted) and he himself is unable to move there, it will essentially mean that there can be no relationship between the two, certainly not a meaningful level of relationship. From his perspective the distance and the logistical difficulties arising are insurmountable.
The mother commenced these proceedings on 9 July 2012. She seeks orders that would, in effect, ratify her move of X to South Australia. She seeks orders that X live with her. In the longer term, she proposes that X spend time with his father at a professionally supervised contact centre in the Adelaide metropolitan area, subject to Mr Day satisfactorily completing an anger management course.
It is her position that, given the nature of the family violence allegedly inflicted upon her and her level of anxiety and fear of Mr Day, these stipulations are necessary requirements to protect X from the consequences of family violence. The underpinning of her case is that, as X’s primary provider of care, her personal sense of safety and security are integral to any proper consideration of X’s best interests, both at the interim and final stage.
Mr Day responded to the mother’s application on 30 July 2012. He does not seek to challenge a regime whereby X lives predominantly with his mother. However, he is opposed to the court giving its imprimatur to the mother’s unilateral relocation of X to South Australia. In these circumstances, he seeks that the mother return X to the (omitted) and the proceedings themselves be transferred to the Brisbane Registry of the Court.
In the event that the court accedes to his position, he proposes orders that X live with his mother, at whatever premises she can obtain for herself in the (omitted) area and pending further hearing the child spend alternate weekends with him between 10.00am on Saturday and 4.30pm the following Sunday and in the other week of each fortnight from 9.30am until 4.00pm on Wednesday.
The mother’s case is that she has no obvious place of abode on the (omitted) and has no wish to return there because of her fear of Mr Day and her personal preference to live in the (omitted) region of South Australia. Accordingly, the case raises issues relating to an individual’s entitlement to freedom of movement.
Mr Day’s perspective, if X remains living in (omitted) pending a final hearing of the parties’ competing applications, it may rob him of the opportunity to test Ms McAllister’s allegations against him and so possibly render any final hearing nugatory because inevitably X and the mother will become more firmly ensconced in South Australia and it will be impractical for the two to return to Queensland.
During the parties’ relationship, there were issues between them regarding financial matters. For much of the relationship, the mother was in receipt of social security, whilst the father was casually employed as a (occupation omitted). Needless to say, the parties are not well resourced financially.
In these circumstances, the father’s case is that it is not financially viable for him to regularly visit X in South Australia for relatively short periods of time, on a fortnightly basis, at a Children’s Contact Centre. In addition, given X’s age, he asserts that it is impossible for him to converse with X on the telephone.
As such, he is fearful that, for the court to ratify Ms McAllister’s relocation of X to South Australia, it may potentially lead to the extinction of his relationship with the child. It is his case that the early years of childhood are central to a child having a warm and intimate sense of relationship with a parent.
In all these circumstances, Mr Day asserts that the only viable way for the court to be able to properly assess the parties’ competing applications and determine where ultimately X’s best interests lie, is if all concerned, X included, are living in the same locale pending final hearing, notwithstanding the fact that Ms McAllister has been X’s principal provider of care up to this stage and does wish to live in (omitted).
In conjunction with the transfer of the proceedings to Brisbane, the father seeks orders that X be independently represented in these proceedings and a Family Report be prepared. Again, the preparation of such a report will be infinitely easier if the parties and X are living reasonably proximate to one another. Otherwise a report involving only one of the parties directly is not likely to be particularly helpful to the court.
The positions of the parties are necessarily polarised at present. As such, the mother has given no considerations to any other outcome to the case other than her preferred one. Similarly, from the father’s perspective, it is currently impossible for him to move to the (omitted) region of South Australia, even if Ms McAllister would countenance such a development.
Mr Day concedes the practical difficulties arising for Ms McAllister from his preferred outcome. In these circumstances, he proposes making a modest but as yet unspecified financial advance to the mother to assist her with the costs arising from any enforced relocation to the (omitted).
For all the reasons set out above, this is a difficult case. All cases involving one parent wishing to move interstate with a child, far away from the other parent concerned, invariably cause heartache and controversy for all concerned. At present, the various options available to the court cannot be twisted or turned to create an outcome, which will be satisfactory to all concerned, like the surface of a Rubik’s Cube..
For that reason, it is usually better that issues relating to interstate relocation be adjudicated fairly, after all relevant evidence has been obtained and thoroughly tested and each parent feels that he or she has been properly heard about the matter.
For these reasons, cases involving the apparent unilateral relocation of a child, which come before the court at short notice, against a background of urgency, where the child has recently left the locale where he or she has been previously well settled, pose particular difficulties for the court.
Invariably, the parent who has moved will assert that he or she had compelling reasons for having to move away urgently. Very often, these concerns will centre on issues to do with family violence and safety. The parent left behind will inevitably feel bitter and disregarded and fearful that his or her ongoing level of relationship with the child concerned will be permanently compromised by the distance created by the move.
From the courts point of view, it may be difficult to ascertain where the truth of the matter lies, as the parties involved almost always have very different views about what has happened in the past, so far as care arrangements for the child affected by the move and so far as issues related to family violence are concerned.
This is the case in the current matter. The mother alleges family violence and coercion of a serious nature. However, she is not as yet able to provide evidence to corroborate her allegations, which the father vehemently refutes.
The nature of an interim hearing is not calculated to resolve these types of controversies, as the evidence available is usually limited and cannot be readily tested. It is the final hearing stage, invariably months after the interim hearing, which provides the proper forum for the resolution of these issues.
It is here that the dilemma arises. The parent left behind will assert that there are all manner of issues and controversies which can only be resolved at the final hearing stage, the chief of which is were do the best interests of the child concerned truly lie – where the child has lived up until this stage or the new place. Therefore to allow the relocation at the interim stage may pre-empt the need for a final hearing and be ultimately contrary to the best interests of the child concerned.
On the other hand, the parent who has moved will usually be able to point to all manner of reasons why the child should remain where he or she now is. These will often centre on pragmatism – it is not financially feasible for the child to return to the place left behind because there is no home available – and concerns relating to safety and protection – the child and relocating parent will indubitably be safe at the new location.
Other complex legal issues may also arise. The parent who has left with the child will assert that as he or she is the child’s main provider of care and, as a matter of personal preference, he or she wishes to live somewhere else. As a consequence, it is often argued that it represents an unwarranted intrusion on that parent’s freedom of movement that the court should act to fetter this entitlement, either at the final or the interim hearing stage.
All these issues and many others arise in the present case, which falls to be determined at the interim stage. The parties’ affidavit material has been hastily prepared. As yet, there has been no family report prepared.
The mother’s allegations of family violence, although serious, have not as yet been tested in any way whatsoever. X is likely to be at a significant point of his development for the next year or so. As such, the court’s decision, at this stage, is likely to be of some moment to each of the parties concerned and indeed to X and also Y.
Finally, the court’s decision must be made in circumstances where the law relating to family violence and the court’s obligation to respond to it has been significantly amended by reason of the Family Law Legislation Amendments (Family Violence and Other Measures) Act, 2011, which came into effect on 7 June 2012. Given Ms McAllister commenced these proceedings on 9 July 2012 these provisions apply to this case.
The legal principles applicable
The essential difference between an interim and final decision is that interim hearings do not determine long-term arrangements for the care of the child concerned, whereas final hearings do. However although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage.
In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act [see section 60CC].
Section 60CC creates two classes of considerations which apply to the courts determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely;
(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.
Prior to the recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depended on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act the court is directed:
“in applying the primary considerations… to give greater weight to section 60CC(2)(b), which is the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, family violence.”
Counsel for the mother lays particular emphasis on this subsection, which she submits has direct application to the circumstances of this case and the issues of unilateral relocation raised by it.
Counsel for the father submits that the legislature cannot be taken to have been intending to authorise a parent to be able to unilaterally relocate a child away from a parent on the basis of uncertain and unverified allegations of family violence, which he asserts is the situation here.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
Interestingly, the legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·An assault;
·Repeated derogatory taunts;
·Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member concerned.
Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. In this case, it is the mother’s case that X was exposed to family violence at the time of the parties’ final separation.
In addition, the amending legislation has provided a new definition of “abuse” for the purposes of the Act. The definition now includes causing a child to suffer “serious psychological harm, including…when that harm is caused by the child being subjected to, or exposed to, family violence..”
At this stage, I do not think that it is the mother’s case that either X or Y has been subjected to abuse in the sense envisaged by the new definition. In any event, at this stage, I have not been provided with any evidence detailing the extent of any such harm sustained by X. It is however the mother’s case that Y has been placed on a waiting list for counselling services at the Child and Adolescent Mental Health Service because of her exposure to “escalating violence in my relationship with the respondent…” [1]
[1] See mother’s affidavit filed 30 July 2012 at paragraph 32
The mother has filed a notice of child abuse, family violence or risk of family violence. [see section 67Z]. She did so on 9 July 2012. Pursuant to section 67ZBB the court is required to take prompt action in respect of such allegations and in particular make any necessary interim or procedural orders:
·To enable appropriate evidence about the allegations to be obtained as expeditiously as possible;
·To protect the child or any of the parties to the proceedings;
·Deal with the issues raised by the allegations as expeditiously as possible.
Pursuant to section 67ZBB(5) the court is specifically obliged to consider whether an injunction for the personal protection of a party to the proceedings should be made pursuant to the provisions of section 68B of the Act should be made.
This section mandates the court to make injunctions for the personal protection of a parent of any child concerned, including restraining another person from coming to that parent’s home, place of residence, or a school or other facility utilised by any relevant child.
The additional criteria relating to how a court is directed to consider how the best interests of any child concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorized as additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
There is a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility for him or her. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should “spend” equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
In the case of Goode & Goode[2], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[2] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
Given the structure of Part VII of the Family Law Act, cases involving one parent wishing to move a major distance away from the other parent concerned raise significant issues for the court and the parties concerned. Such cases throw up competing principles, which are difficult to reconcile.
On the one hand, one of the purposes of the Family Law legislation is to provide former partners with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children, in the now changed circumstances following the end of the marital or de facto relationship between them. There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned chose not to live together. It has been said that relocation cases need careful analysis.[3]
[3] See C & S [1998] FamCA 66
Accordingly, it is usually considered preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocations may have potential serious ramifications for the children concerned, especially when those children are young, in terms of their ongoing parental relationships.
The consequence of any proposed move does not turn on the distance involved alone. In determining the consequences of such a move, what is likely to be highly relevant is the age of the child concerned.
In addition, there may be financial considerations arising from the move. Wealthier families are able to cope more easily with issues of relocation because of their greater financial resources. Less financially equipped families may struggle to meet the fuel or other transport costs involved in relatively short moves.
In many circumstances, children are frequently able to maintain their relationships with significant people, including a parent, by less frequent periods of quality time spent in school holidays, which is supplemented by other forms of communication, such as telephone, webcam or letters.[4] As Kay J pointed out in Godfrey v Saunders[5] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[4] See D and S V (2003) FLC 93-137 at 78, 280
[5] See Godfrey v Saunders 208 FLR 287 at 298
It is a common occurrence, in contemporary Australia, for a parent to move voluntarily away, from a child or children concerned, after a relationship breakdown. In addition, children are often relocated away from one of their parents, as a result of a consensual decision made by the parents concerned. Often financial imperatives are involved.
These types of situation come about because of the high level of mobility in Australian society and the reality that many parents wish to pursue career and personal opportunities, in a different place to that in which they lived whilst in a relationship with the other of their child’s parents. High rates of divorce are also an incident of modern Australian life.
Although the shared parenting legislation has added emphasis to the principle that children benefit, in their emotional and social development, by having as extensive a relationship as possible with both their parents, there is no principle of law that the parents of children are required to live indefinitely close to one another, in order to ensure that such an optimal outcome is achieved.
It is clear that the shared parenting legislation of 2006 has not changed this situation. Nor, in the absence of specific legislative direction, in my view, do the more recent family violence provisions more easily justify a child’s relocation far away from the other parent concerned at the interim stage. It remains the case that all matters concerning issues of unilateral relocation and family violence must be carefully examined by the court.
Pursuant to rights read into the Australian Constitution, Australians have a right to live how and where they choose. Australia is a free and democratic society, which prizes the freedoms of its citizens. Accordingly, the court cannot ignore the legitimate expectations of parties who come before it regarding these personal freedoms.
However, given the more limited evidence usually available at the interim stage, the court must exercise considerable caution, in respect of such relocation issues, when the evidence before it is necessarily provisional and untested. In my view, this situation remains the same in cases involving allegations of family violence, particularly at the interim stage.
Accordingly, the Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.[6]
[6] See C & S [1998] FamCA 66
Relocation has implications for the quality and intimacy of the parental relationship a child has with the absent parent. These concerns are particularly pressing in respect of young or immature children. In this particular case, I bear in mind what was said by Boland J in Morgan & Miles.[7] Her Honour confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“…It [is] highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases”.
[7] Morgan & Miles (2007) FamCA 1230
These considerations are relevant in the present case. These are interim and so abridged proceedings. What was the situation confronting Ms McAllister in June of this year? Was it a situation of such emergency that the move of X and Y to South Australia can be readily justified? What arrangements can be made for X to spend time with his father? What are the appropriate steps to protect X and Y from being exposed to family violence in the short to medium term, given the nature of the allegations which have been made?
Fundamentally, at the interim stage, the court must be careful not to “second guess” the issue of relocation which, given its complexity, is an issue which requires careful consideration. It is Mr Day’s position that the parties have “joint parental responsibility” for X.
By this I assume he means that the presumption of equal shared parental responsibility should be applied. Accordingly, it seems to be implicit, in his case, that at some stage he will be asking the court to consider either an equal time or substantial and significant regime for X, which necessarily must require both his parents to live in the same location.
If X remains living in South Australia, the consideration of this issue at the final hearing stage may become otiose, as it will be submitted that he is now well settled in (omitted) and, as such, this regime is neither conducive to his best interests nor readily practicable to put into effect.
The evidence
There are many issues of fact in dispute between the parties. The chief dispute being what was the nature of the relationship between the parties – was it a violent and coercive relationship, as the mother would have it or was the parties relationship a more conventional one, with stresses and arguments occurring between the parties, as the father would have it.
Disputes of this kind are normally resolved at the final hearing stage, when each party has an opportunity to fully develop his case and importantly the other party is able to test that case through a process of cross examination. It is in this way that the court determines issues of credibility. Essentially deciding whether it believes one witness over another.
In this case, the father and his solicitor appeared before the court via a telephone link from the (omitted). The mother and her solicitor appeared in court in Adelaide, although the mother’s solicitor is based in (omitted).
In these circumstances, it was not logistically possible for there to be even limited cross examination of the parties concerned. The interim hearing could only be conducted “on the papers”. As a consequence of the abridged nature of the hearing, it is not possible for the court to determine the very many disputed issues arising between the parties.
This case fundamentally concerns the rights and entitlements of two persons who are not formally parties before the court. They are primarily X and to a lesser degree Y. The principle means by which the court determines the nature of a child’s relationship with a parent is through the mechanism of a family report.
If appropriate, such reports may also examine the views of any child affected by the courts decision. In this particular case, given the urgency and controversy of the issues arising between the parties, there has been insufficient time for such a report to be prepared.
However, not withstanding these serious difficulties, it remains the court’s obligation to fashion the outcome, which it believes it will best serve the interests of the children concerned. However, as previously indicated, the recent amendments to the Family Law Act have prioritised the need to protect children from the psychological harm arising from being either directly subjected to, or exposed to, family violence over other considerations.
The mother is 26 years of age. She identifies as a person of Aboriginal descent. She grew up primarily in (omitted) and in south central Queensland. Historically, she has never lived in the (omitted) region.
The mother asserts that, apart from the first six months of their relationship, her relationship with Mr Day was characterised by persistent violence, threats and verbal abuse. She asserts that the parties’ difficulties were exacerbated by the father’s refusal to financially contribute to the family’s well being and his continuing drug abuse.
The mother asserts that Mr Day used marijuana on a daily basis, smoking up to five cones per day. She also asserts that he consumed alcohol regularly and stayed out late. She asserts that this behaviour led to the parties having frequent heated arguments.[8]
[8] See mother’s affidavit filed 9 July 2012 at paragraph 35
Mr Day has not specifically denied these allegations of drug and alcohol abuse on his behalf. He does however rely on three affidavits deposed to respectively by his mother Ms F; his sister Ms K; and a friend of his mother Ms S. They each depose to his non violent behaviour and cast some aspersions on Ms McAllister.
Ms F provides an opinion that the mother suffered some form of depression following X’s birth. She is not qualified to provide such a diagnosis, which is refuted by Ms McAllister. Ms F deposes that the father was involved in X’s care, on a daily basis, prior to his incarcerations, as well as being involved in home keeping responsibilities.
It is Ms F’s evidence that she observed that the mother had difficulties managing her finances, whilst Mr Day was in prison. She is also critical of the mother for becoming intoxicated and abusive at a social function which the two attended together. Ms F is also critical of some aspects of the mother’s housekeeping abilities. Ms McAllister denies the gravamen of these criticisms.
Ms S corroborates Ms F’s evidence regarding the mother’s aggressive behaviour whilst intoxicated, on a social occasion. She speaks positively of Mr Day, whom she has known for 22 years.
In the overall context of this case, I did not find either Ms F or Ms S’s evidence particularly helpful. For obvious reasons, they are likely to be closely aligned with Mr Day and their recollections of past events cannot be subject to any scrutiny at this stage.
As previously indicated, it is a requirement that a person alleging incidents of family violence file a specific notice delineating each incident of violence which is relied upon to support the particular outcome sought. In her notice, Ms McAllister has specified five specific incidents of family violence to which she was subject by the actions of Mr Day.
Mr Day has chosen to address each of these incidents individually. One of these incidents is alleged to have taken place in the presence of Ms K. The significance of Ms K’s affidavit is that she denies that this incidence of violence ever took place.
In support of his generic denials of family violence, Mr Day points to his greater weight and physical strength over that of Ms McAllister. The implication of this evidence being that, if he had ever assaulted Ms McAllister in the manner alleged, she is likely to have sustained injury sufficient to required medical attention.
In this case, he relies significantly on the fact that the mother has not provided any evidence of ever having sought medical treatment in respect of any incident involving him. Further, there is no evidence of any report to police concerning such behaviour on his part. Finally, the mother has never sought a family violence order naming him as a perpetrator of violence.
It is Mr Day’s case that the absence of this corroborating evidence is particularly telling in the present case, particularly in the context of his release from prison in December 2011, subject to patrol conditions, which would have made him vulnerable to immediate arrest in the event of any complaint of violence made against him. It is his case that given his idiosyncratic circumstances, the absence of such complaints post December 2011 is telling and significantly undercuts the mother’s claims of being coerced and controlled by his behaviour.
The first incident of family violence of which the mother complains occurred in April 2011. Ms McAllister alleges that she, Mr Day, Y and X were visiting Ms K’s home, when there was a “nasty” argument between the parties, which escalated to the father violently placing his hands around her throat and strangling her. Both the father and his sister deny that any incident approximating this allegation ever occurred.
The second incident of family violence on which Ms McAllister relies occurred in early July 2011, prior to Mr Day’s incarceration. The mother asserts that there was an altercation between the parties precipitated by a disagreement relating to financial issues. She asserts that her Centrelink payments had been changed from a single to a partnered rate. This had resulted in the parties falling behind in their rent. Ms McAllister alleges that Mr Day was aggrieved that she told Centrelink about her change of circumstances.
It is Ms McAllister’s evidence that during this altercation she indicated to Mr Day her intention to leave the relationship. At this stage, she asserts that Mr Day threatened her with a 35 centimetre knife indicating that he would subject her to facial disfigurement with it, if she left him. If this allegation is true, the threat constitutes coercive and controlling behaviour of an extremely serious nature.
Ms McAllister deposes that she left the home overnight but returned the next day. She deposes as follows in respect of her reasons for returning to the relationship:
“Although I wanted the violence to stop, I felt trapped and did not have the confidence to leave the relationship. It always played on my mind that he would come after us and hurt me and the children. I also felt financially trapped in the relationship, as I could not afford to live on my own with the children and I had no close relatives that could assist me financially.”[9]
Again, Mr Day categorically denies this allegation and asserts that he does not own such a knife.
[9] See mother’s Affidavit filed 9 July 2010 at para.41
In the context of Ms McAllister claiming to feel trapped and coerced to remain in the relationship with him, Mr Day points to the fact that his incarceration in July of 2011 provided Ms McAllister with a perfect opportunity to leave the relationship with impunity, which she apparently chose not to take. Rather, she regularly visited him in prison, accompanied on occasions by X.
In addition, the evidence indicates that Ms McAllister regularly wrote affectionate letters to Mr Day, whilst he was in prison. I have been provided with copies of these various letters.[10] It is Mr Day’s position that these letters and this behaviour are not congruent with a person who is cowed and coerced by a violent partner. Ms McAllister’s position is that she still had some feelings for Mr Day and wished to support him through the difficult circumstances of his incarceration.
[10] See Annexure A to the father’s Affidavit filed 30 July 2012
The third and fourth incidents of family violence, on which the mother relies, both took place on 15 May 2012, following Mr Day’s release from prison and whilst he remained on parole. The mother asserts that there was an argument between the parties, which culminated in Mr Day grabbing her face and squeezing her lower jaw causing her pain. This incident was allegedly witnessed by Y.
The mother further asserts that, following this incident, she elected to leave the former family home with Y and X. Whilst she was attempting to drive off, Ms McAllister asserts that Mr Day picked up a garden shovel, which he waved in the air whilst screaming “you’d better take this with you and start digging your own hole.” The implication being that he was making a threat to murder her. Again, an allegation which, if true, represents coercive and controlling behaviour of a most serious kind.
Again, the father denies that the incident occurred. There is no independent corroboration of the incident and Ms McAllister apparently returned to the relationship the following day. Again, Mr Day points to the fact that the mother did not attempt to invoke either the police or parole authorities against him.
The final incidents of violence of which the mother complains occurred on the day the parties finally separated, which was 14 June 2012. The mother asserts that there was a verbal altercation between the parties, which led to her indicating to the father that she was going to leave the relationship. Thereafter, she asserts that Mr Day indicated to her that he wanted to have a “fifty/fifty arrangement” in respect of X’s care.
The mother asserts that she was holding X during this conversation but Mr Day grabbed the child from her. After she had packed her things, she deposes that she went to retrieve X from the father to take him with her. Thereafter, she asserts that Mr Day punched her on the left side of her rib cage, with a clenched fist, causing her a sharp pain and to fall to the ground.
The father concedes that the parties had a verbal argument on this occasion. It was his position that it was unreasonable of the mother to take X away on a cold night, particularly as he had been ill recently. It is his case that it was the mother who forcibly removed the sleeping child from his arms and it was she who was agitated and upset rather than he.
It is Mr Day’s position that he was not acquiescent in Ms McAllister removing X from the parties’ former family home on the evening of 14 June 2012. However, it is his evidence that he could not realistically oppose her decision because Ms McAllister threatened to make a false complaint of violent behaviour against him, which would have almost certainly resulted in his parole being revoked. As such, he deposed that he “walked away [from the conflict]”.[11]
[11] See father’s affidavit filed 30 July 2012 at paragraph 10
Mr Day’s position, at this stage, can be summarised from the following extract from his affidavit material:
“I deny Ms McAllister’s allegations of violence and say that the claims have been made as a means of justifying Ms McAllister removing X from Queensland and moving to South Australia. X has lived with Ms McAllister and me in Queensland since his birth in (omitted) 2011 and I have cared for him daily since he was born, apart from the period that I was in prison and even then I saw him each weekend. I seek the opportunity to respond more fully to the allegations and seek that X be returned to Queensland and that this matter be adjourned to the Queensland Registry so that I may defend it and I further seek to spend time with and communicate with X so I might continue a meaningful and consistent relationship with him”. [12]
[12] See father’s affidavit filed 30 July 2012 at paragraph 13
The father continues to work as a (occupation omitted) but has left the parties’ former family home, moving in with his mother at (omitted). As previously indicated, he is prepared to make some funds available to assist the mother in returning to the (omitted). He disputes her assertion that her only source of familial support is in (omitted). Rather he points to the fact that the applicant’s mother continues to live in (omitted).
The mother’s position is that she has obtained a two bedroom flat, in the (omitted) region, through (omitted). The flat is fully furnished and provides all necessities for her and the children. It is the mother’s position that Y is well settled at the (omitted) Primary School, where she is in year one. Ms McAllister says that Y is excelling at school.
However, as previously indicated, it is the mother’s position that Y has been detrimentally affected by being exposed to the violent relationship between the parties. As such, she is on a waiting list for counselling services at (omitted). Ms McAllister herself is receiving domestic violence counselling.
The mother aspires to complete a (omitted) course. X attends day care in (omitted) twice a week. Necessarily, it is the mother’s position that she is well settled in (omitted) and it would be detrimental to both her and the children to be compelled to return to the (omitted) area.
Section 60CC factors
The recent changes to the Family Law Act, regarding family violence, are significant ones. The key amendments are designed to “prioritise the safety of children in parenting matters”.[13] This does not mean that allegations of family violence are not to be closely scrutinised by the court or uncritically accepted. Nor does it mean that the court must disregard the benefit of a child having a meaningful level of relationship with both parents, even in cases where there are concerns pertaining to family violence.
[13] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
The rational for the amendments is to safeguard children from coming to harm as a result of exposure to family violence. Section 60CC(2)(A) makes this the court’s priority. In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”
This ethos is picked up by the provisions of section 67ZBB, which requires the court to take prompt action in respect of allegations of family violence, including putting in place forensic steps to gather evidence about such allegations, including the appointment of an Independent Children’s Lawyer or the commissioning of a family report.
In addition, pursuant to the provisions of section 67ZBB(5) the court is required to give consideration to making an injunction directed to securing the personal safety of any person relevant to the welfare of the child concerned. These powers are potentially far reaching and are directed to securing the protection of any child likely to be affected by exposure to family violence.
In my view, the recent amendments do not more easily authorise the unilateral relocation of children extreme distances away from the other parent concerned, in the situations of crisis, which often surround the breakdown of intimate relationships. Nor, in my view, do the recent amendments abrogate what was said by the Full Court in cases such as Campbell & Spalding and Morgan & Miles.
In this case, the mother’s move of X to (omitted) has significantly altered not only the child’s current relationship with his father but also his potential to have a fully developed relationship with him as he matures. In my view, this situation can be characterised as a recent development and is very much one which occurred on the sole instigation of the mother.
In these circumstances, the court must look to the situation confronting Ms McAllister and determine whether the emergency which confronted her was of such moment to justify her decision. This assessment must focus on the need to protect both X and Y from exposure to family violence.
If the mother’s allegations about the family violence directed towards her by Mr Day are true, I have no doubt that each of the episodes concerned meets the definition of family violence contained in section 4AB(1) of the Act. The two threats of violence, involving the knife and the shovel respectively, were clearly coercive in nature. The other assaults, if true, would have caused Ms McAllister to be fearful.
As matters currently stand, there is no independent corroboration available to support the mother’s claims of suffering family violence at the father’s hands. In addition, there is no evidence of complaint to police or evidence that the mother attended a medical practitioner or similar person, in Queensland, to seek assistance in respect of her situation.
However, it is rarely the case that one party can irrefutably prove his or her allegations of suffering violence at the interim stage. This does not absolve the court of its responsibility to deal with allegations of family violence stringently.[14]
[14] See Amador & Amador (2009) 43 Fam LR 268
Very often family violence arises within the private confines of a family home, in the absence of independent witnesses. Its victims may suffer a range of emotional responses, such as embarrassment, shame and indeed fear, which render the reporting of the violence to appropriate authorities difficult and accordingly its independent verification problematic.
In addition, the victims of family violence are intimately connected with the perpetrator of the violence concerned. This situation, of itself, creates emotional conflict and doubt. It is however now generally recognised that family violence is prevalent in all social settings and walks of life and represents a corrosive threat to the emotional well being of children.
It is the mother’s position that it is not surprising that she is unable to provide corroborating evidence of having been the victim of serious and protracted family violence. It is her case that her loyalty to and love for Mr Day prevented her from making any such complaints and caused her to visit him in prison regularly and correspond with him whilst he was incarcerated. Undoubtedly, she was safeguarded, whilst Mr Day was in prison.
I agree with the submission made by Mr Day that the various letters Ms McAllister sent to him are incongruous with her position that she was fearful and overborne by his conduct. Mr Day’s incarceration also obviously provided Ms McAllister with an opportunity to extricate herself from the relationship with Mr Day in an orderly and systematic manner, which could have secured her safety and the safety of the children concerned without moving interstate.
However, I am unable to resolve this issue on the basis of the evidence currently available to me. It is trite to point out but true nonetheless that the victims of family violence do not always behave in an entirely rational or predictable manner. It is Ms McAllister’s evidence that she separated from Mr Day on several occasions because of his conduct but returned to the relationship nonetheless. This is a common pattern in case involving family violence.
Where family violence is endemic in a parental relationship it has the potential to be damaging for children in a variety of ways. Most obviously they may be directly injured by an episode of violence or frightened by it. More subtly, children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child's parents are not appropriate psychological role models for children.[15]
[15] See In The Marriageof Patsalou (1994) 18 Fam LR 426
There is a real danger that children, who are exposed to family violence, will perceive that abuse is part of life for females (in particular) and become accepting of such behaviour. As a consequence, children may learn that violence is an appropriate way to resolve disputes and thus will follow in the footsteps of a violent parent, when they become parents themselves, thus entrenching a cycle of violence between familial generations.[16] This is equally damaging for boys as it is for girls.
[16] See Blanch v Blanch & Crawford (1999) FLC 92-837 – per Mullane J at 92-837
Boys may follow in the footsteps of violent fathers and become violent parents in turn. Girls may mirror the behaviour of their mothers and return to dangerous and unsatisfactory relationships, when they are mature, exposing their own children to danger. In the shorter term, children who are exposed to aggression are likely to behave aggressively themselves. Accordingly, children of violent parents are at real risk of forming disturbed interpersonal relationships, both as children and adults.
In T & N,[17] Moore J, after reference to social science research, identified the highly detrimental consequences, to the wellbeing of children, of being exposed to family violence. She said as follows:
“They are terrified and simultaneously come to accept it as an expected part of life; they may learn that violence is acceptable behaviour and an integral part of intimate relationships; or that violence and fear can be used to exert control over family members; they may suffer significant emotional trauma from fear, anxiety, confusion, anger, helplessness and disruption in their lives; they may have higher levels of aggression than children who do not have that exposure; and they may suffer from higher anxiety, more behaviour problems and lower self-esteem than children not exposed to violence. Clinical profiles for children who witness domestic violence include post-traumatic play, diminished ability to regulate affect in the forms of hyper-arousal, numbness, emotional constriction, a low frustration threshold, nightmares and other sleep disturbances, aggressive behaviours, intense and multiple fears, regression in developmental achievements, and disturbances in peer relations.”
[17] See T & N (2003) FLC 93-172 at 78,760
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Obviously the latter behaviour is the more damaging so far as children are concerned.[18] Not all incidents of family violence will be necessarily damaging for a child.
[18] See JG & BG (1994) 18 Fam LR 255 at 261
Given that family violence is not homogenous in its qualities and can arise in a variety of context, at the interim stage, it is necessary for the court to assess the degree of risk which may come to any child concerned, if he or she comes into contact with the perpetrator of the alleged violence. It may also be necessary for the court to assess the consequences of such an outcome for the other parent and victim of the alleged behaviour.
In addition, for obvious reasons, spousal victims of family violence are themselves likely to be extremely fearful both for themselves and of any child concerned, of any form of interaction whatsoever with the violent parent. Such fears may lead to the abused parent wanting to be as far as possible from the other violent party.
In these circumstances, the mother’s actions in moving to South Australia must be examined. It is her position that (omitted) was her most logical destination, given the offer assistance made by her cousin Ms E. Without doubt, it is a very long way away from Mr Day and those associated with him.
At this juncture, I have not been provided with any independent assessment of the mother’s individual level of psychological vulnerability. I do not know if she has been or will be diagnosed with any psychological injury as a result of what she says has happened to her at the hand of Mr Day. In addition, I do not know how emotionally robust she is likely to be in dealing with the prospect of Mr Day spending time with X and possibly Y.
These are issues about which the mother is likely to wish to lead further evidence in due course. They are also likely to be matters which will be examined in the context of a family report. At any event, this evidence is not presently to hand.
Notwithstanding his disavowal of any violent behaviour towards Ms McAllister, Mr Day’s position would appear to be that it was a disproportionate response, on her part, to move to another state. She could hypothetically have moved to another residence on the (omitted) and obtained the protection of a family violence order from an appropriate court in Queensland. She could have moved to a near by town or even to (omitted), where her mother lives, to ensure a reasonable level of safety for herself in the circumstances, which would not have resulted in such potentially serious consequences for his relationship with X.
In my view, these are important considerations. Pursuant to section 60CG, the court is directed, consistent with the best interests of the child concerned, to make orders that will not expose a person to “an unacceptable risk of family violence.” Clearly the distance involved in any move; the nature of the violence involved; and the circumstances of the parties concerned; will have implications for assessing the risk arising from the violence alleged.
In this case, if Ms McAllister remains in South Australia and Mr Day remains in Queensland, the risk of re-exposure to family violence is nil. It is more difficult to assess the level of risk in other hypothetical situations, particularly as at this juncture, Ms McAllister has no alternative proposal whatsoever other than she remains in (omitted).
However, it would seem to me likely that the risk would be manageable (and so not one unacceptable to take) if Ms McAllister lived more proximately to the (omitted) and availed herself of the protection of a family violence order.
In addition, it is open to this court to make an order pursuant to section 68B of the Family Law Act. Pursuant to section 68C, if such an injunction is in force, a police officer may arrest, without warrant, a person threatening, harassing, or molesting the person protected by that injunction if the officer believes reasonably that such an injunction has been breached.
This is clearly a very difficult and finely balanced case. To a large degree, the difficulties arise because all relevant evidence is not yet before the court but the situation confronting the court is one fraught with all manner of urgency. In discharging its duties under section 67ZBB, I am of the view that it is incumbent upon the court to appoint an Independent Child Lawyer for both X and Y and to order that an urgent family report be prepared.
The utility of such a report will be much enhanced if both parties can play an active physical part in it and be observed interacting directly with the children (I include Y in this regard) concerned. This is not likely to be possible if the parties remains living in separate states and, as such, may have implications for how readily the court is able to assess the best interests of the child concerned.
Mr Day’s perspective, the danger of the court authorising the mother’s relocation of X to South Australia is that it will present him with a fait accompli in relation to future arrangements for X’s care. It will also significantly reduce the utility of any family report, which the court may order.
At the present time, given the distance involved, neither party has any well considered proposals for Mr Day to spend time with X in the current circumstances. In this situation, Mr Day is fearful that he will have no relationship whatsoever with X, let alone a meaningful one, if the current status quo is maintained. This submission cannot be easily dismissed. It is, I think, largely axiomatic that X will have no relationship with his father, which can be considered meaningful, if the two are separated by many hundreds of kilometres.
Relocation has obvious implications for the quality and intimacy of the parental relationship a child has with the absent parent. These concerns are particularly pressing in respect of young or immature children. As a result of these factors, it has been said by the High Court that relocation cases need careful analysis. It is axiomatic that the interim hearing stage does not provide a forum for such careful and delicate analysis.
I acknowledge that the opportunity to interact with a loving parent clearly has the potential to confer a great benefit on any child concerned. Children need the love of their parents. The years of early childhood are important for children developing warm and intimate relationships with their parents.
The strength in parent/child relationships comes from parent and child being able to know one another at first hand and to have the facility to share memories and common experiences together. In this case, at this stage, X is unlikely to have the potential to have such a relationship with his father, if the present circumstances prevail.
It is Mr Day’s position that he was intimately involved in providing for X’s care, both before and after his incarceration. Necessarily, it is his position that X has a significant level of relationship with him and indeed with other members of his paternal family. Given X is not yet two years of age, it is Mr Day’s case that these relationships are particularly vulnerable to the vicissitudes of distance.
I agree. X is at risk of forgetting who his father is. He is not presently sufficiently developmentally mature to sustain a relationship with his father over a long distance. Forms of electronic communication are meaningless for X, as his ability to speak must be limited, at best.
At this stage, it seems more likely than not that Ms McAllister has been X’s primary carer. As such, considerations relating to her sense of personal safety and security are important matters and are likely to have application as to how ably Ms McAllister will discharge her parental responsibilities for the child. However, at this stage, I am unable to dismiss Mr Day’s claims that he too has been significantly involved in the care of X. This is an issue of final hearing.
In all these circumstances, the prolonged separation of X from his father has the potential to have profound consequences for X as he develops from a baby to a toddler and beyond. This adds moment to the difficult decision which is currently before the court.
If Ms McAllister and X remain in (omitted) and Mr Day remains living on the (omitted), the practical difficulty and expense of X spending time with his father will be significant. It would be beyond the means of even a well resourced family for a parent to be able to travel regularly from the (omitted) to Adelaide, presumably by commercial airline. In Mr Day’s case, the resulting expense would undoubtedly be prohibitive. This state of affairs must have implications for X’s right to maintain personal relations and have direct contact with his father, on a regular basis.
Mr Day is open to criticism for excluded, as a result of his criminal conduct, from being involved in a significant portion of X’s life to date. However, I have not been provided with any extensive details of the conduct which led to his incarceration or been given any details of his previous criminal history, if any. As such I do not know if Mr Day’s offending has direct implications for X’s welfare.
It is the mother’s case, by necessary implication, that Mr Day has little insight into the responsibilities of being a parent and is likely to be a poor role model for X. Given the father’s criminal history, I am not in a position to easily dismiss such concerns. It is also difficult, if not impossible, for me to assess the role which the father has played to date in X’s emotional life. These are also issues which are likely to be addressed in a comprehensive family report.
Section 60CC(3)(c) was formerly known as “The friendly parent provision”. It has been extensively reformed by the Family Violence Amendments. A decision to move a child’s place of residence is characterised as a major long-term issue pursuant to the provisions of section 4 of the Family Law Act. In this case, there can be no doubt that Mr Day did not take part in the decision to move X to (omitted) as Ms McAllister did not consult with him about the issue.
One of the significant considerations in this case is X’s degree of maturity or rather lack thereof. He is of an age which renders it practically impossible for him to carry on a long distance relationship with his father. In addition, it must be uncertain what recollection he has, if any, of the various altercations between his parents, which he is asserted to have witnessed. I accept however that exposure to family violence has possible emotional implications for even the youngest children.
I appreciate that it may be regarded as inherently sexist in circumstances where the court is considering restraining Ms McAllister’s entitlement to live where she chooses, when no evaluation has been made of the prospect of Mr Day moving to (omitted), either on a temporary or permanent basis.[19] Essentially, the court has given no consideration to the possibility of Mr Day committing to something, which he may find unpalatable, to achieve X’s greater good.
[19] See U & U (2002) FLC 92-112 at 89,081 per Gaudron J
However, this case came about because of the mother’s unilateral relocation of X rather than vice versa. As such, in my view, the workability of the father moving to a location of the mother’s preference is an issue for the final hearing. At this stage, in my view, it is incumbent upon the court to put in place a regime, which will enable a proper and exhaustive enquiry to be conducted into all these complicated and competing issues.
Conclusions
This case is complex and the respected positions of the parties polarised in the extreme. As such, at present, the case offers no ready or obvious solution. Whatever is the outcome, one party or quite possibly both of them will feel hard done by the result. They should bear in mind that this is an interim or provisional result.
The court’s priority is to be focused on protective concerns relating to the children, particularly X. However, that does not give it carte blanche to ignore other of the considerations arising under s.60CC, including the benefits of X having a meaningful level of relationship with both his parents.
In this case, given the circumstances of the mother’s move and X’s tender years, there is a real risk of X losing the potential benefits of having a meaningful level of relationship with his father. Notwithstanding the reconfiguration of the priorities arising under s.60CC(2) the court must still have regard to this consideration. I am concerned that X’s relationship with his father cannot be managed over distance.
At this early stage of proceedings, the court’s responsibility is to concentrate on responding effectively to the allegations of family violence and ensuring all relevant evidence is before the court as soon as is practicable. It is not in a position to make positive findings about family violence on the basis of the untested evidence currently available.
The issues of family violence are vehemently contested and there is a lack of probative evidence either way. There are, however, some materials available which are not congruent with the mother’s portrayal of the father as a coercive and controlling person. Ultimately, Mr Day is entitled to test the allegations made against him.
However, specific findings of fact about the allegations of family violence must await final hearing and, if necessary, at that stage, an attempt can be made to characterise such violence, particularly in terms of its potential detriment for X, Y and the mother herself.
Pending that evaluation, in addition to putting in place mechanisms to investigate the allegations arising in the case, the court must put in place measures to protect the children from being further exposed to episodes of family violence. It seems logical that such protective measures be commensurate with the degree of risk arising in the case.
In the circumstances of this case, I do not consider Ms McAllister’s removal of X to South Australia was proportionate to the degree of threat facing her and the children. In saying this, I appreciate she was not necessarily acting completely rationally and as such precipitate behaviour may of itself may be one of the sequelae of exposure to family violence. However, the fact remains, Ms McAllister made a unilateral decision concerning a major long-term decision regarding X. In my view, the court must be cautious about potentially condoning such actions.
In my view, it will be easier to gather the necessary evidence regarding the mother’s allegations of family violence if the proceedings are held in the location in which the relevant allegations arose and where the majority of witnesses concerned currently live. The fact finding process will also be easier if the parties concerned are in the same location.
A crucial part of the court’s duties arising under s.67ZB in this case will be to order an urgent family report. The family report will have more utility if both parties are able to participate fully in it and interact with X in the presence of the nominated report writer. These are factors which militate in favour of the proceedings being transferred to the Brisbane Registry of the court and Ms McAllister and X living in south east Queensland pending the necessary final hearing of the matter.
The question which then arises is whether there can be sufficient mechanisms put in place, pending that final hearing, which will ensure that neither the mother nor X is exposed to any further episodes of family violence. The obvious mechanism for this to occur is to ensure that the parties do not come into direct physical contact with one another.
For reasons already provided, the episodes of family violence detailed by the mother are extremely concerning. If true, the father has threatened to both disfigure and murder the mother. I note, however, that these allegations, on the mother’s case, arose in the context of a turbulent domestic relationship, which has now ended. Although I am not in a position to ascertain the lethality of these threats, at this stage, it may be the case that they relate to the unhappy and conflicted situation of the parties of the time.
In my view, an injunction pursuant to s.68B of the Family Law Act will provide sufficient protection for the mother. In addition, it is not incumbent upon Ms McAllister to reveal any future address in Queensland to Mr Day.
An injunction for the mother’s personal protection, when coupled with the powers arising under s.68C and the conditions relating to the father’s parole, in my view, provide sufficient protection for the mother and are likely to prevent X being exposed to abuse or family violence pending the final hearing of this matter.
I accept that it will be financially burdensome and inconvenient for the mother to have to return to south east Queensland. However, the fact remains that she does not have long standing connections with (omitted) and gave little consideration as to how Mr Day and X would maintain their relationship with one another, whilst she lived in South Australia.
For all these reasons, I have come to the conclusion that the court should order Ms McAllister to return X to an area within a radius of 20kms of the (omitted) Police Station within 21 days of the date of these orders. Both prior to and after the child’s return to Queensland, pursuant to this order, I will order that the child live with the mother. I appreciate that such an order represents an imposition on the mother’s freedom of movement, but such a restriction is provisional, pending the final hearing of the parties’ competing applications.
I also appreciate that the mother has no obvious place to live in Queensland. However, she has demonstrated an ability to secure housing for herself in South Australia at short notice. I will also direct that Mr Day provide her with the sum of $1,000, within the next 21 days, as a necessary pre-condition of her forced return to Queensland.
Given the conflicted circumstances of the parties, which involve significant allegations of family violence, it is clearly not appropriate for the presumption of equal shared parental responsibility to be applied in this case. As a consequence, it is not necessary for me to consider either an equal time arrangement or a substantial and significant time arrangement in this case. In any event, both such regimes would be inappropriate given X’s tender years and the fact that his mother is likely to be the child’s most significant emotional attachment at this stage.
I will also order that both X and Y be independently represented in these proceedings. It is also appropriate that an urgent family report be undertaken once the mother and children have returned to the (omitted) area.
Arrangements for Mr Day to spend time with X are likely to be fraught with all manner of difficulty in the short to medium term. These were not issues which either party was able to examine in detail in the context of the interim hearing of the matter, which necessarily centred on whether the mother would or would not be compelled to return to Queensland. The father wishes to make further submissions in respect of the matter, once X is back in Queensland.
In all these circumstances, I will make orders requiring each of the parties to enrol in the changeover and supervised contact programme offered by the (omitted) Children's Contact Service once the mother has returned to Queensland.
For all these reasons, the orders of the Court will be as set out at the commencement of these Reasons for Judgment.
I certify that the preceding one hundred and eighty-nine (189) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 20 August 2012
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