MEAD & MEAD

[2016] FCCA 2074

FEDERAL CIRCUIT COURT OF AUSTRALIA

MEAD & MEAD [2016] FCCA 2074

Catchwords:
FAMILY LAW – Interim hearing – mother’s urgent application for a recovery order – unacceptable risk of harm to children if recovery order made – “need to protect” primary consideration given significant weight – application dismissed – mother to spend time with children in presence of adult in interim – Independent Children’s Lawyer appointed – proceedings adjourned for mention in 6 weeks’ time.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61BA, 61DA(3), 65D, 65DAA(3)

Cases cited:

Banks & Banks [2015] FamCAFC 36

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348

Applicant: MS MEAD

Respondent: MR MEAD

File Number: BRC 731 of 2012

Judgment of: Judge Newbrun

Hearing date: 27 July 2016

Date of Last Submission: 27 July 2016

Delivered at: Parramatta

Delivered on: 3 August 2016

REPRESENTATION

Counsel for the Applicant: Mr Gardiner

Solicitors for the Applicant: LGM Family Law

Counsel for the Respondent: Mr Bolger

Solicitors for the Respondent: Ghobrial Legal

ORDERS, PENDING FURTHER ORDER:

1. That the mother’s application for a Recovery Order is dismissed.

2. That the mother’s application for an order that the proceedings be transferred to the Brisbane Registry of this Court is dismissed.

3. That the parties shall have equal shared parental responsibility for the children X born (omitted) 2010 and Y born (omitted) 2013 (“the children”).

4. That the children shall live with the father.

5. That pursuant to section 68L of the Family Law Act 1975 (Cth), the interests of the children X born (omitted) 2010 and Y born (omitted) 2013 (“the children”), shall be independently represented by a lawyer and the Legal Aid Commission of NSW is requested to arrange the appointment of a lawyer to do so.

6. That the solicitors for the parties shall forthwith forward to the Legal Aid Commission of NSW notice of these Orders and copies of the documents filed in the proceedings on behalf of their respective clients.

7. That leave is granted to the parties and the Independent Children’s Lawyer to issue more than 5 subpoenas for the production of documents.

8. That the proceedings are adjourned for mention to 14 September 2016 at 9:30am.

9. That prior to the above mention date, the children shall spend time with the mother in Sydney, in accordance with the agreement of the parties, or failing agreement, they shall spend time with the mother in Sydney during the day time in the presence of an agreed adult, or failing agreement, a member of the father’s extended family, such as the paternal grandmother Ms Mead. Such time to be spent by the children with the mother shall commence, subject to the mother’s availability, on Saturday or Sunday 6 or 7 August 2016, for a period of at least 3 hours and then fortnightly thereafter up to the next mention date of these proceedings.

10. That liberty is granted to the parties and the Independent Children’s Lawyer to relist the matter on 7 days’ notice in relation to any issue as to the implementation of these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

BRC 731 of 2012

MS MEAD

Applicant

And

MR MEAD

Respondent

REASONS FOR JUDGMENT

1. These are the reasons for judgment in the matter of Mead & Mead.  On 27 July 2016 the Court heard an urgent application by the mother for a recovery order in relation to the children who had been retained by the father in Sydney in about mid-May 2016.  The children of the relationship are X, date of birth (omitted) 2010 and Y date of birth (omitted) 2013.  The father opposed the making of the recovery order at the interim hearing. The mother’s proposed recovery order, if made by the Court, would see the children return to live with her in Brisbane at least in the interim. The mother also sought an order that the proceedings be transferred to the Brisbane Registry of this Court.

Material relied upon by the parties

1. The mother relied upon her Case Outline dated 27 July 2016, her Response filed 27 June 2016, her Amended Application in a Case filed 28 June 2016 and her affidavit filed 27 June 2016.

2. The father relied upon his Case Outline filed in court on 27 July 2016, his affidavits filed 27 May 2016 and 25 July 2016, and he also relied upon an affidavit from the paternal grandmother filed 25 July 2016.

3. The Court notes that no application was made by the mother at the interim hearing for an adjournment to file and serve an affidavit in response to the father’s last affidavit filed 25 July 2016. 

Issues in dispute at the interim hearing

1. The mother contends, inter alia, that she has been the primary carer of the children in Brisbane, that the father unilaterally decided to relocate the children to Sydney in about mid-May 2016 and that should the children not be forthwith returned to her primary care in Brisbane that the children are liable (if not already) to be emotionally detrimentally affected by remaining in the father’s care in Sydney. The Court notes that the mother made numerous other assertions in relation to what she contended would be the detrimental effect upon the children if they remained living in Sydney with the father.

2. The father contended, inter alia, that the children are at risk of harm in the mother’s primary care should they be forthwith returned to her to live in Brisbane.

Chronology

1. (omitted) 1985 - father’s date of birth.

2. (omitted) 1987- mother’s date of birth.

3. Late 2009 - the parties commence co-habitation; they rent premises in (omitted), near (omitted).

4. 2010 - the parties move to (omitted) in Queensland.

5. (omitted) 2010 - date of birth of child X.

6. About November 2011 - separation of the parties for about six (6) months. At separation, the father moves back to Sydney. The mother and the child, X, remain in Brisbane. The father begins a fly-in fly-out arrangement to work in (country omitted) (“(omitted)”); during his time off work he spends his time partly in Sydney and partly in Brisbane. The father states that his time spent with the child X was restricted until parenting orders were obtained in the Family Court of Australia on 27 July 2012.

7. (omitted) 2013 - date of birth of son, Y.

8. 27 July 2012 - Family Court of Australia, Brisbane, parenting consent orders: 

   a)child X live with mother;

   b)spend time with father; and

   c)equal shared parental responsibility.

9. Mid-September 2012 (per father), December 2012 (per mother) - parties reconcile. They live in rented premises in (omitted).  Following the reconciliation the father returns to work in Brisbane.  Some of his work requires him to travel out of Brisbane, including to Sydney.

10. (omitted) 2014 - date of marriage.

11. (omitted) 2014 - father commences work as a fly-in fly-out worker in (omitted) Western Australia.

12. February 2016 - father ceases his work in Western Australia to come home and live in Brisbane with the family.

13. March 2016 - parties go to (country omitted) for a short holiday and children are cared for by paternal grandmother for six (6) nights.

14. 15 March 2016 - separation under the one roof.

15. 13 May 2016 - mother travels to the (country omitted) for a short holiday.  Children are cared for by paternal grandmother in Sydney. Mother’s last time with children.

16. 14 May 2016 - father flies to Sydney to be with the children.

17. 27 May 2016 - father’s Initiating Application filed.

18. 27 June 2016 - mother’s Response filed.

Agreed or undisputed relevant facts

1. The father is employed as a (occupation omitted) on a full-time basis at (omitted). The father presently lives with his grandparents in Sydney. He has a bedroom and the children have their own separate rooms.

2. The paternal grandmother is presently assisting the father in school and day care drop-offs. She also cares for Y on his two (2) days off from day care. X is attending the same primary school as her cousins (where the father’s brother’s children attend). The father often picks up the children from school or day care. He has involved the child X in gymnastics. He is organising soccer for the child Y.

3. The parties lived in Brisbane since early 2010. Both children were born in Brisbane and have lived in Brisbane for their entire lives.

4. The mother states that the child X attended (omitted) State School near (omitted) and loves her school and friends.

5. The child Y also attended an early learning centre in (omitted).  The mother states that this child loves this centre and has a close friend there. 

6. The mother’s friends and family all live in Brisbane. The father’s extended family; including his mother, grandparents, brother, all live in Sydney (the mother asserts that the father only has his grandmother in Sydney, aunt and mother).

7. Since the father retained the children in Sydney in May 2016, the child X has been attending a primary school in Sydney, with the younger child Y attending a preschool. The paternal grandmother is assisting the father in caring for the children during the week.

8. The mother states that she works as a (occupation omitted) for (omitted) in Queensland. She has been employed in the same position for 6.5 years and recently obtained a promotion.

9. The mother refers to the father’s work as a fly-in fly-out (occupation omitted) when the children were first born. She states that the father’s work rosters would vary and he was often gone for weeks, then home for a few days only. During this time, the mother was the sole carer of the children.

10. The mother states that as a result of her recent promotion within her employment, she can work from home if needed. She states that her employer is very understanding of family commitments and the need for flexible working hours.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled:  see Goode & Goode.

2. In Marvel & Marvel (2010) 43 FamLR 348, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120]. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122]. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123]. Later, at paragraph 100 their Honours amplified their comments and said:

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

3. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52:

   Consideration of the s 60CC factors that are relevant

   [46]. In order to determine whether it is in the child’s best interests to remain in Thailand pending trial, we must consider matters arising under s 60CC.

   [47]. As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.

   [48]. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   [49]. Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.

   [50.] When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

   [51]. In our view, the undisputed facts here lead inexorably to the conclusion that it would not be in the child’s interests to be required to move to Australia pending the trial. In arriving at this conclusion we ought to record, without condescending to particulars, that it is arguable the primary judge was led into error in coming to a different conclusion by the way in which the case was presented to her.

   [52]. In the following discussion, we will detail the most significant s 60CC factors we have taken into account in reaching our decision. The absence of discussion of any particular s 60CC factor does not reflect any failure to consider it. Rather, it reflects our assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors we specifically address.

4. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part 7 of the Act relating to children that inform the making of parenting orders.

5. In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

6. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

7. When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA(3).

8. If the presumption of equal shared parental responsibility in relation to the child applies and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

9. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA(3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

10. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC and 65D.

THE BEST INTERESTS OF THE CHILDREN

Section 60CC – The Primary Considerations

Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration.

1. The mother states that she has a very strong bond and is very close to the child X. She refers to the child Y as being “adorable” and further states that this child can, “like any little boy full of energy, be very trying at times, however he generally responds well to time out and quiet time when he goes over the top.”

2. The Court accepts that the children have a meaningful relationship with both parents and would benefit from a continuance of those relationships, subject to the children being adequately protected from any risk of abuse and/or family violence, and in this latter respect, the Court refers to its discussion under the “need to protect” primary consideration discussed below.

3. The Court is mindful of the risk of the children’s meaningful relationship with the mother being potentially detrimentally affected if a recovery order is not made in the mother’s favour, noting the mother’s residence in Queensland and the children presently being in Sydney with the father.  In this context, the Court notes that the “need to protect” primary consideration is to be given greater weight when the Court is applying the “meaningful relationship” and “need to protect” primary considerations, and the Court refers to its discussion below under the “need to protect” primary consideration.

Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The father asserts the children are at risk of harm in the mother’s care, which is disputed by the mother.

2. Whilst, in light of the father’s assertion that the children are at risk of harm in the mother’s care, it would appear inconsistent that historically he has been prepared to allow the children to remain in the mother’s care, and that he is presently seeking an interim parenting order, inter alia, that the children spend half the school holidays with the mother, nevertheless, the evidence before the Court requires the Court to assess the contested risk issue carefully.

3. The mother asserts that the father regularly drinks alcohol to the point that he is inebriated on almost a daily basis. The father denies this allegation.

4. The father asserts that the mother has mental health issues. The mother asserts that she has been diagnosed with mild anxiety in about 2011, but that she has managed her anxiety with treatment. She disputes the father’s assertion that she has had to attend upon a psychiatrist or psychologist for her anxiety; she asserts that she attended upon a psychologist to work on rebuilding her relationship with the father.

1. The father annexes a copy of a text message from the mother to him dated 12 October 2015 stating, inter alia:

   Like I know I’ve got bad temper and all and I really am going to try and fix it with this psychologist … I know my temper is bad.  Please believe I will do all I can to make it better with help of psychologist.

2. The father asserts in his affidavit filed 27 May 2016 that the mother’s son from a previous relationship, a boy now aged 12, named “A”, used to live with the parties. He asserts that the mother returned this child to his father “after lapse of seven years as she was unable to cope with looking after him.” By contrast, the mother, disputing these assertions, inter alia, states that this young boy and the father did not get along and that, as a result, the parties had a lot of difficulty in managing this child’s behaviour. The mother asserts that the father became quite abusive towards this child and on one occasion, was physically abusive (the Court notes that this allegation of physical abuse by the father towards this child is not factually particularised by the mother). She asserts that the child’s father and the mother discussed the situation and they both decided that it would be in the child’s best interests for him to live with his father for a trial period. The mother states that she only agreed to this because she believed that it would be better for that child to live with his father, rather than living in high conflict with the father.

3. The father, in his affidavit filed 25 July 2016, at paragraph 93, in response to the above assertions of the mother in relation to the child A, states that he witnessed “the abuse [the mother] did to A”; the father annexes a text message from the mother to him “after one of these events.” The relevant text message from the mother to the father, being Annexure L, dated 25 January 2015, states, “OMG, (omitted) gave me the finger!!! WTF do I do FUK! I got him on his head hard and (omitted) him next time I will bend his finger back.”

4. The father does not expressly deny the mother’s allegation that he was “physically abusive” to the child A “on one occasion”, but again, the Court notes that the mother’s affidavit does not factually particularise the allegation of physical abuse.

5. The mother denies the father’s allegations that she is a risk to the children.

6. The father asserts that in December 2011 the paternal grandmother was contacted by the mother who had asked her to come and take the children away as she was unable to cope with them. He asserts that the paternal grandmother went to Queensland, picked up the children and returned with them to Sydney. The father was working in (country omitted) at this time. He asserts that upon his return he went to Sydney and took the children back to Brisbane with him.

7. In contrast, the mother asserts that at this time it was the paternal grandmother who insisted that she come and visit the mother and take the children to give the mother a break, as the father was working away and was not home to provide the mother with any support. The mother asserts that she did not ask the paternal grandmother to take the children away from her. The mother states that she did experience a panic attack at this time, but that when it occurred she had not been diagnosed with anxiety nor was she receiving treatment for it. The mother states that she had contacted the paternal grandmother and confided in her how she was feeling.

8. The father asserts that around the end of December 2011 he returned home from working in (country omitted) and found his car smashed up and parked in front of the house. He asserts that his neighbour saw the mother smashing up the car, “looking ferocious” and that his mother had been told by the mother that she had been angry and had smashed up the car. The mother denied to the father that the incident ever took place. In her affidavit, the mother disputes that she deliberately damaged the vehicle; the mother asserts that, to the contrary, whilst the father was away, someone had reversed into her car at a shopping centre. The mother states that she was worried that the father would be angry at her when he got home, so she used a hammer and blowtorch to try and repair the damage to the car.

9. In January 2012 the father asserts that he became aware that the mother had called his mother and had threatened to drive the car off the road with the children. He asserts that his mother immediately contacted the mother’s mother and she was able to calm the mother down. In contrast, the mother denies this allegation. She states that she called the father’s mother to again speak to her about how she was feeling at the time. She denies that she told the paternal grandmother that she intended to harm the children. She states that from her inquiries with the maternal grandmother, the paternal grandmother never contacted the maternal grandmother as alleged by the father.

10. The Court notes that, in relation to the father’s assertions regarding incidents in December 2011 and January 2012, that the parties entered into consent parenting orders on 27 July 2012, providing, inter alia, that the child X live with the mother and that the parties were reconciled in December 2012.

11. The father asserts that in September 2015, when he was working in Western Australia, he received a phone call from the mother who told him that she had just thrown a toaster across the kitchen. The father asserts that the mother told him that she was “losing it” and had stated that “I can’t look after the kids. They are driving me crazy.” The father asserts that 10 minutes later the mother called him again stating “I am okay now, don’t worry about it.”

12. The father asserts that in October 2015 he returned home from Western Australia and noticed a patch repair on the corner of the wall in the lounge room. The father asserts that the mother’s child (from the former relationship of the mother) told him that the mother had been angry and had smashed the remote at the wall. The father asserts that the mother later told him that she had gotten angry and “chucked the remote at the wall.”

13. The father asserts that around the end of October 2015 the mother told him that she threw a chair and smashed it after the child Y had made her angry. When the father returned home the child X told the father that the mother had got angry and smashed the chair.

14. The father asserts that in early November 2015 he was told by the child X that the mother had “smashed the phone, the mother had been very angry, and the children had ran and hid in their room.”

15. In contrast, the mother states that, in relation to the father’s above allegations against the mother in relation to alleged incidents involving the mother in September, October, and November 2015, she was always very conscious not to argue with the father in front of the children, she denies ever stating profanities to the children and she denies ever threatening to harm the children or smashing things in their presence or throwing things at them (paragraph 62(e)(iii) of the mother’s affidavit). Inter alia, the mother denies the child X expressing fear or concern, or running and hiding under her bed in fear.  The mother denies directing frustration at the children. The mother, inter alia, states that she did find it difficult at times raising two (2) small children while the father was away for work for long periods of time, however she states that the difficulties she experienced were typical of a mother with two (2) small children and not unusual. The mother states that her text message to the father, stating that she would have sexual relations with another person for money, was sarcastic.

16. As to the mother’s denial as to smashing things in the presence of the children, the Court notes in the father’s affidavit filed 25 July 2016, at paragraph 93 and Annexure L, a series of text messages from the mother to the father on 5 January 2016, in which the mother admits to smashing one of the children’s chairs following an incident relating to the children eating their food.  The text messages state, inter alia: “Was busy.  Kids r being good.  Had to wake them both today to go work.” 

    The next text message from the mother to the father states:

    I take it back … I just smashed one of kid’s chair … It’s broken now.  Maybe you can fix when you hey home.  Kids were eating and X doesn’t want any more so she opened her big mouth and says I want cupcake.  So Y picks his plate up because he decided he wanted a cupcake too and his food went all over the floor … 

    The father responds with his text message to the mother stating: “Why you smash chair.  I’ll try to fix.” 

    The mother responds with her text message stating: “Cos I smacked Y twice and figured if I don’t break something I’ll end up smacking him again.”

17. The father asserts that in March 2016 he became aware that the mother had been taking the drug Rohypnol. There is a Facebook entry referring to this drug which states, “I’ll bring the Rohypnol.”  The mother, for her part, denies that she takes Rohypnol and that her understanding was that her friend, who the mother asserts sent the text message to her stating, “I’ll bring the Rohypnol”, was “joking”. The mother states that her text response to the friend’s message saying “sweet!” was not meant to condone or imply that the mother takes this drug and that the father has taken her comment out of context. The mother annexes to her affidavit a drug screen test conducted on 22 June 2016 detecting Oxazepam. The mother’s related drug test forms show the mother’s admitted “prescription, non-prescription or other agents taken in the last month” dated 20 June 2016, to be Augmentin, Citalopram, Primolut, Serepax and Valium. The mother annexes a Medical Certificate dated 21 June 2016 from her GP certifying that the mother has a medical condition and is prescribed Valium and Serepax.

18. In the father’s affidavit filed 27 May 2016, the father asserts that he became aware, in May 2016, that the mother had been dating a man from the (omitted). By reference to an asserted text message from the mother to the father (paragraph 30 of the father’s affidavit), the father asserts that the mother was moving in, together with the children, with the man that she had been dating on the (omitted), such a move to take place by the end of the year.

19. The mother disputes this allegation that she was proposing to move the children to the (omitted); to the contrary, the mother states that she is seeking to obtain rental accommodation in the (omitted) area, noting that the parties’ property at (omitted) is being sold. The mother states that in the event that the children are returned to live in Brisbane with the mother prior to her obtaining such rental accommodation, she and the children will live with the maternal grandmother at her home in (omitted), which is about 15 minutes’ drive from the children’s school and day care. 

20. The father, taking this issue further in his affidavit filed 25 July 2016, at paragraph 97, asserts that the mother has informed him that she was moving to the (omitted) and annexes a text message from the mother to the father (Annexure N to his affidavit), stating, inter alia:

    He drives several times a week from (omitted) to (omitted) to see his kids even just to take them out to dinner.  Reality is I can’t afford to live on my own juss and I can’t find anyone else to live with where I have cheap rent and my kids can be kids.  And I’m not moving now putting house for rent is a long, long process so will be a while.

21. Further, also forming part of Annexure N, is a copy of a letter addressed to the mother at an address in (omitted), a (omitted) suburb, apparently from an insurance company, stating that a home insurance policy on the former matrimonial home at (omitted) has been cancelled as from 22 July 2016.

22. The mother, in her affidavit, asserts that the children are not used to being away from herself for such long periods of time and prior to the separation, the longest period the children were away from her since their births was four (4) nights when the parties went away for a weekend together. In contrast, the father asserts that in March 2016 the parties went to (country omitted) with the children being left with the paternal grandmother for six (6) nights. Further, the father asserts that during 2015 he worked in Sydney and brought Y with him for weeks at a time, and he annexes a series of text messages to his affidavit (Annexure M), wherein the mother requests, on 19 May 2015, the father to take that child with him.

23. The mother states that prior to the father commencing these proceedings, the father has always said to her that she is a wonderful mother to the children. She states that even after the parties’ separation and as recently as 10 May 2016, only days before the father decided to withhold the children from spending time with her, the father sent her a text message telling her that she was a “great mum.”

24. The father asserts that on 13 May 2016 he became aware that the mother had asked his mother to pick up the children from Sydney Airport as she was going to (country omitted) with a friend; the father had asserted that the mother “took off” to (country omitted). The father asserts that his mother told him that the mother had left the children with her and that she had been told by the mother that the children would be picked up by her on 22 May 2016. The father asserts that he left everything behind including his job and house and flew to Sydney on 14 May 2016 to be with the children.

25. The mother, in contrast, states that she disputes the father’s assertions that she had just “took off” to (country omitted) and that neither the father nor his mother knew whether she would be returning for the children. The mother states that prior to separation the parties had booked a (country omitted) trip for May 2016 and that after the separation the father had insisted that the mother still go on the trip. She states that the father arranged for the paternal grandmother to care for the children whilst the mother was in the (country omitted). In a text message from the father to the mother dated 12 May 2016 he tells the mother to “enjoy (country omitted). I hope you have an awesome time there and do lots of stuff.”

26. Further, the mother annexes to her affidavit a series of text messages between herself and the paternal grandmother dated 5 May 2016 indicating the mother informing the paternal grandmother of the date of departure and date of return from the (country omitted).

27. The mother asserts that on 13 May 2016, the day after she arrived in the (country omitted), the father texted her and told her that he wanted to move to Sydney and keep the child Y with him. She states that the father proposed that the child X live with her in Brisbane. She states that the father acknowledged that X and the mother were very close and it would not be in X’s best interests to live away from her. She states that the father told her that he thought the child Y would be better off with him. The mother states that on 16 May 2016 the father again raised his request that Y live with him in Sydney and started to pressure the mother to agree straight away.

28. The mother states that after much discussion back and forth, she ultimately gave in to the father and agreed that the child Y could live with the father in Sydney “for a time” and that the child X would live with the mother in Brisbane. The mother annexes exchanges of text messages between the parties, including a text message from the father dated 16 May 2016 in which he states, inter alia, in relation to the children:

    Concentrate on X.  She is the one that needs you more than anything in this world … You can still be a mum to Y and I’ll get a iPad so you can video-call him every morning if you like. You’ll see him at least 12 times a month for a whole weekend.

29. The mother states in her affidavit that she now is so concerned with the father’s actions in withholding the children from her, that she no longer agrees that it would be in the child Y’s best interests to be removed from her and the child X, and live with the father in Sydney.

30. The Court notes the father’s affidavit filed 27 May 2016, at paragraph 32, in which the father states, inter alia, that on 14 May 2016 he flew to Sydney to be with the children. In the mother’s affidavit, at paragraph 49, and Annexure 10, the mother annexes a text message from the father to the mother dated 22 May 2016 stating, inter alia:

    As you we’ll know I’m going back to Sydney and have engaged a solicitor and he will be representing me. The kids will be staying with me in Sydney and legally I can do this as we have no parenting or court orders in place. I want the kids to be in a stable life. I won’t stop you from seeing them once we have orders in place …

31. Following the final separation, the father asserts that he was spending time with the children on Tuesday and Thursday nights. He states that this arrangement eventually increased to every day of the week since the mother was out late most of the time. The father asserts that the mother also spent time with her boyfriend on the (omitted) on Friday and Saturday nights, leaving the children in his care on those occasions. The Court notes that the parties are in dispute as to their respective levels of care for the children following the father’s return to Brisbane in February 2016 and up until May 2016, when the father retained the children in Sydney; the father asserts that he was the primary carer during this period of the children, which is disputed by the mother.

32. The father’s affidavit filed 27 May 2016 asserts that the mother resides in (omitted) (a town situated approximately midway between (omitted) and Brisbane). The father asserts that he has relocated to Sydney and that his working hours as a (occupation omitted) are from 7:00am to 3:00pm. He states that his mother and himself will be looking after the children. 

33. The father asserts that the mother has drinking problems and that he has noticed on most occasions she is aggressive and of a violent nature. The mother, for her part, states that she does not take drugs and drinks alcohol on social occasions only as she is very health conscious and focussed on her fitness. The father asserts that the mother has, on a number of occasions, verbally abused him in the presence of the children. He asserts that the mother has verbally abused the children. The mother disputes these allegations.

34. The father asserts that the mother “has threatened to self-harm and harm the children as well.” The Court notes that the mother has expressly disputed the father’s assertions that she poses a risk to the children in her care and that she has threatened to harm the children. The mother does not expressly dispute the self-harm allegations. Even accepting the mother has implicitly disputed such self-harm allegations, the Court notes the father, in his affidavit filed 25 July 2016, at paragraph 100 and Annexure O, asserts that the maternal grandmother has told him to have the mother committed to hospital “because of her history of mental health issues and anger issues.” 

35. The Court notes Annexure O, being an asserted text message from the maternal grandmother to the father states: “If she tries to kill herself or something you are her legal husband you can have her committed for her own safety, and then she might get help.”

36. Further, as to the allegation of self-harm made against the mother in the father’s affidavit filed 25 July 2016, at paragraph 124, he states, inter alia:

    I request that the children remain living with me in Sydney for their safety and wellbeing.  The time that the children spend with (the mother) should be initially supervised due to her mental health issues and her previous conduct towards the children.  Annexed and marked S is copies of text and Facebook messages in relation to (the mother’s) mental health issues, her regrets for having the children, her intentions to self-harm herself and her social outgoing routines.

1. In Annexure S, there are text messages from the mother to the father, stating, inter alia:

   U no babe I know this sounds bad but sometimes I wish I never had kids … I don’t think I was ready mentally ... I don’t regret having them.  I regret the time I had them. I wish I had them later when I am able to be a better mother. I feel like I’m not giving it my all at the moment at being a mum. It’s shit I wish I could change it but I can’t … I just wish I could say fuk it about myself and devote myself just to them … but I can’t I’m selfish … next time I’ll slit my wrists before I go with kids ... (24 April 2015)

   I’ll be looking into getting help for myself this week babe just want you to know.  So I can learn to deal with anger and also emotion instead of trying to figure out how to end life as it’s not how a normal human should be thinking.  (6 October 2015)

   I know you probably think I’m overreacting babe but working out is my life right now so when someone fuks it I get angry. (30 April 2015: this appears to be a reference by the mother to her trainer).

2. As to the father’s allegations against the mother that she has threatened to harm the children, which allegations are disputed by the mother, in the father’s affidavit filed 25 July 2016, he annexes to his affidavit (Annexures C and D), text messages passing between the mother and himself; on 19 and 20 May 2015, text messages from the mother in which she relates to the father her stress in caring for the children, at particular times on those dates: for example, text messages from the mother stating: “I’m so stressed right this second about to smash Y he is being a cunt”, “don’t love Y right now I’m going to kill him,” (following the father’s text stating: “... I love taking care of him”), “I don’t ... I like X”, “God I could have hung him last night,” “hope so because it’s making me so tired I wana kill him.”

   And within a series of text messages from the mother to the father during the period 2 November 2014 to 26 May 2015, the mother states: “I’m sorry babe but I slapped her this is beyond a fucking joke this cunt of a kid tonight”, “Sorry babe I’m in a feral mood ur cunt of a daughter is doing her crying thing still I’m about to kick her in the fucking head in a min”, “Fuk I’m about to bash her up”.

3. In the father’s affidavit filed 25 July 2016, at paragraph 91 and Annexure J, the father states that following his travelling to Sydney to be with the children in May 2016, the child X told the paternal grandmother that “her mummy gets angry sometimes throws things at me and one time she hurt my eye real bad.” 

4. The Court has noted that Annexure J, being a text message from the mother to the father showing a photo of the child X’s face, is dated 18 September 2014, which therefore would appear to predate the alleged conversation between the child X and the paternal grandmother.

5. In the paternal grandmother’s affidavit filed 25 July 2016, at paragraph 25, the paternal grandmother asserts that when the child was staying with her in May 2016, at a time when the mother was in the (country omitted), that the child had told her “Mum gets very angry and throws things, one time she threw a photo frame at me and it hit me and hurt my eye real bad.”

6. The Court notes in the father’s affidavit filed 25 July 2016, he states that in the lead-up to him returning to the family home in February 2016, the mother was constantly contacting him to inform him that she could not cope with the children and needed him to come home to look after them.

7. The father, in his affidavit filed 27 May 2016, asserts that the mother has anger management issues and for no reason gets very angry and loses her control. The mother does not expressly dispute that she has anger management issues although, as previously discussed, she denies the husband’s allegations that she uses profanities at or in front of the children and she denies that she has ever threatened to harm the children or smash things in their presence or throw things at them.

8. The father, in his affidavit filed 25 July 2016 annexes a text message, from the mother to himself (Annexure G), in which the mother states, in the date range from 2 October 2015 to 13 July 2016, inter alia, “X is angry she is turning into me n I don’t want that I want her to be gentle n cope better.”

9. The father also annexes a copy of a text message from the mother to him dated 12 October 2015 stating, inter alia:

   Like I know I’ve got bad temper and all and I really am going to try and fix it with this psychologist ... I know my temper is bad please believe I will do all I can to make it better with help of psychologist.

10. The father asserts that since he has had the children in Sydney he has been taking the child X to see a psychologist to assist in getting some coping strategies for the child’s anger issues. The father annexes a short report from a registered psychologist in Sydney, dated 27 June 2016, in which it is stated, inter alia, that the child X has told the psychologist that she does not like telephone calls with her mother. The psychologist states that this latter issue will be explored in further sessions with the child.

11. The Court has noted that the above psychologist, at the outset of her short report, states that the psychological therapy with X, the father and the grandmother, has:

    The aim of reviewing and managing concerning changes in X’s behaviour this year. These changes have been influenced by her parents separating, and a change of living arrangements .. During today’s session it was reported that X states that she does not wish to talk to her mother on the phone, and seems distressed after these phone calls each night, with behavioural problems ensuing.  In one on one time with X, she stated this, of her own accord, confirming that she does not like phone calls with her mother.  In future sessions we will explore this further, providing X with the opportunity to process the complex emotions surrounding separation and parental relationships, among other things ...

12. Further, in this context, the Court has noted the mother’s evidence at paragraphs 84 to 87 and paragraphs 94 to 96 of her affidavit, inter alia, that the child X has gradually become more and more distressed each time they talk that the mother will not come and get her. The mother states that after the father refused to allow the children to have facetime with her, the child X would become angry at having to talk to the mother over the telephone and not see her. The father, for his part, asserts that he always encourages the child X to speak to the mother, but that the child does not want to and becomes distressed when made to.

13. The mother states that the father, through his solicitor, denied that the child X is suffering at all and alleged that she didn’t want to speak to the mother or come home to her.

14. The mother refers to the father’s communications with the maternal grandmother stating that the child X, having started her new school in Sydney, was misbehaving and had been called up to the school three (3) times in the first week. In this context, the father had told the maternal grandmother that they had to go see a counsellor for this child’s attitude problems. The mother states that the child X was thriving at her school in Brisbane and had not ever been called to the Principal’s office for disciplinary reasons. In response, in the father’s affidavit filed 25 July 2016, he asserts that X’s behavioural issues were present in Brisbane and that he was called into “OOSH” (Out Of School Hours), by the manager Ms S and the child’s prep teacher, to discuss her behaviour.

15. The mother states that the child X is clearly suffering with “this dramatic change to her living circumstances and not being allowed to live with me” referring to the children being retained by the father in Sydney since May 2016. The mother states that she does not know what effect the separation is having on the child Y but that he is very young and that, in her view, it is crucial that this child have the mother in his life, as well as the father. The mother does state, however, that the child Y talks to her happily on the telephone.

16. The mother states that the father has been recently communicating with her family and has been manipulating their emotions and making statements to them, that the mother has left him and run off with another man and that she doesn’t want anything to do with the children (the mother disputes these allegations). In contrast, the father states that he denies misleading the mother’s family or not being truthful to them. The mother states she is very concerned about the emotional risk to the children in circumstances where the father has removed the children and made false allegations against her.

17. The mother submits the disputed family violence allegations made by the father against the mother should, in particular, be considered against the evidence adduced by the mother that the father, subsequent to the filing of his Initiating Application, has told the mother that he will allow her to spend unsupervised overnight time with the children both in Brisbane and in Sydney immediately, provided that she agrees to the father’s proposed parenting terms.

18. In this context, the mother also submits that the father’s proposed interim and final parenting orders that the children spend time with the mother for half of the school holidays is quite inconsistent with his assertions of disputed family violence and his stance at the interim hearing of opposing the recovery order.

19. The mother asserts that on 16 June 2016 the mother and the father sent each other text messages, which are annexed to her affidavit, which provides the mother asking the father “If I was to move to Sydney can I have the kids week on/week off?” The father responds with his reply stating, “Yes, of course.”

20. The mother annexes a further text message from the father to the mother on 16 June 2016, which provides that the father will “have full custody of the children ... unless comes a time [the mother] wishes to move to the Sydney area where 50/50 custody will be obtained.” The text message then appears to provide a parenting arrangement, if the mother remains in Queensland, whereby the mother spends time with the children only twice a month on a weekend, with the children being available from 5:00pm on the Friday and being returned by 5:00pm on the Sunday.

21. In the father’s affidavit filed 25 July 2016, at paragraph 88, he states that he sent the text messages referred to in paragraphs 21 to 26 of the mother’s affidavit. The father states that the mother kept texting him. He states that he does not and did not believe that the mother would move to Sydney so he said “yes” to end the harassing text messages from the mother, as he was at work. The father states that he gave those responses to stop the mother texting him. He states that:

    If [the mother] moved to Sydney and spent time with the children then I would be available to step in when she was not coping, as she had not coped in the past and needed my help.

22. The mother states that the father uses archaic and physical methods of discipline with the children, of which the mother does not approve, such as smacking the children on the bottom with a wooden spoon or sending them to bed without dinner. The father responds in his affidavit filed 25 July 2016, at paragraph 101, that he does discipline the children, but, “I never abused my children as alleged.” 

23. The father, in Annexure P to his affidavit, annexes a series of text messages from the mother to the father dated 15 March 2015 showing, inter alia, a picture of the child X’s bottom with bruising following the mother hitting her several times with a wooden spoon.

24. The mother, in her affidavit, refers to the children’s usual routines when living with her in Queensland. The father responded to this assertion by stating that the children “are in a stable routine that includes school and after school activities and spend quality time with family.”

25. The father refers, in his affidavit filed 25 July 2016, to paragraph 104, Annexure Q, in which he states that the maternal grandmother has never really minded the children for any lengthy period of time “when she was able to cope with them.” The father states that on one (1) occasion the parties left the children with the maternal grandmother for an overnight trip, which they had to cut short and come back to collect them. The father states that when we got to “the house” the maternal grandmother had the children locked in the car at the front of the residence waiting for the parties to pick them up. In Annexure Q, a series of text messages from the mother to the father dated 10 March 2016, the mother, inter alia, refers to her parents as “pathetic”, her father is “ashamed of me”, and states “my mother I’m sure would prefer I were dead so doesn’t have to admit she has a daughter like me” and “I feel like mum is a two-faced cunt.  So nice to my face but when I’m not around talks about me.”

26. The father states, in his affidavit filed 25 July 2016, at paragraph 105, that the maternal grandmother has also recently mentioned to him that she would not look after the children for the mother because of her party lifestyle.

27. The father states that the maternal grandmother has said to him that she will not watch the children while the mother goes out drinking. The father states that the mother has described the relationship with the maternal grandmother as a love/hate relationship, resulting in them not talking to each other for long periods of time. He states that the mother has told him that it has been like this since she was 13 years of age.

28. The Court observes that the mother has not filed any affidavit from the maternal grandmother.

29. In the paternal grandmother’s affidavit filed 25 July 2016, in paragraph 13, she states that in 2011, during a visit to Queensland for the father’s birthday, the father, the mother, the boy A, X and the paternal grandmother went out for dinner. She states that the mother, for no reason, became furious and “drove off with us.” The paternal grandmother said to the mother: “Ms Mead, slow down. The children are in the car as well.” The paternal grandmother asserts the mother responded “too bad.”

30. In paragraph 15 of the paternal grandmother’s affidavit, she states that after the father went to (country omitted), she became concerned about the mother as she was posting alarming remarks on Facebook. She states that she called the mother and said: “Is everything okay?” 

    The mother responded: “I’m not coping with the children.”

    The paternal grandmother said: “Ask your mum to help out. She is close by.”

    The mother responded: “Mum would not help.”

    The paternal grandmother said: “If things get out of hand, call me, and I’m happy to help with the kids.”

31. In paragraph 16, the paternal grandmother refers to receiving a call from the mother in early December 2011. The mother requested the paternal grandmother to come and get the child, X. The paternal grandmother flew to Brisbane that day. At the airport, the mother handed the child, X, to the paternal grandmother. The child, X, stayed with the paternal grandmother at this time for 13 nights.

32. In paragraph 22, the paternal grandmother refers to the dates on which the children and the boy, A, came to Sydney and stayed with the paternal grandmother; these dates ranged from 11 April 2014 to 13 May 2016.

33. The Court has sought to set out in some detail, previously in these reasons, the substance of the evidence from each party in relation to this “need to protect” primary consideration, including the issue of whether there is an unacceptable risk of harm to the children of abuse and/or family violence should they be returned to the mother’s care in Queensland.

34. As discussed above, the parties are significantly in dispute, at this interim hearing, in relation to the father’s allegations and contentions that the mother’s past behaviour, including her behaviour towards the children, demonstrate that the children are at risk of harm in her regular care. The Court is required to consider, nevertheless, these competing allegations. In this context, the Court also notes that there is a body of text messages between the parties, and of the maternal and paternal grandmother, which requires consideration.

35. The Court is also mindful that it should consider the mother’s above‑discussed allegations and contentions against the father, including her contention that the children are liable to be emotionally detrimentally affected (if not already so affected, according to the mother), should they not be returned forthwith to her care in Queensland, in particular by reason of the children’s past historical care and relationships by and with the mother respectively.

36. In the context of the father’s allegations against the mother in relation to her past care of the children, the Court should state that it is mindful of the father’s arguable inconsistent behaviour in arguably acquiescing in the mother’s past care of the children, in relation to which he is now critical and particularly whilst he was working as a “fly-in fly-out” (occupation omitted) in Western Australia.

37. The Court is also mindful that the father has sought interim parenting orders that include the children having unsupervised time with the mother, for example, during school holidays (whilst noting the father’s affidavit evidence that initially the children should have supervised time with the mother). The Court also has not overlooked the father’s communications with the mother, following the father retaining the children in Sydney in May 2016, in which he offered the mother extensive unsupervised time with the children should she relocate to Sydney, whilst noting the father’s excuses for such offers in his affidavit evidence.

38. The Court has taken into account, and considered carefully, the father’s arguable inconsistent behaviour above, in its assessment of the issue as to whether there is a need to protect the children from abuse and/or family violence in the mother’s care, and whether there is an unacceptable risk of exposing the children to family violence if the children are returned to her care in Queensland. This arguable inconsistent behaviour of the father has been considered by the Court against, in particular, the significant body of text message material from the mother to the father, discussed in these reasons.

39. As to the above “need to protect” primary consideration issue, including the issue of whether there is an unacceptable risk of exposing the children to abuse and/or family violence if the children are returned to the mother’s care in Queensland, the Court has carefully considered the mother’s allegations and contentions against the father.

40. As to the mother’s allegations and contentions that the children are liable to be emotionally detrimentally affected should they not be returned forthwith to her care in Queensland, the Court is mindful and has taken into account, that historically the mother was the primary carer of the children for significant periods in the children’s lives, including during the period of the parties’ first separation from late 2011 to about late 2012 and during the period from September 2014 to February 2016 when the father was working in Western Australia. In this context, the Court notes the parties’ disputation as to the extent of each other’s care of the children during the period from February 2016 to May 2016. 

41. The Court is mindful, in particular, of the apparent particularly close relationship of the child, X, with the mother, whilst also acknowledging the mother’s meaningful relationship with the younger child, Y. The Court has noted the father’s apparent acknowledgement in about May 2016 to the mother that it would not be in the child X’s best interest to live away from her. 

42. There is evidence before the Court that the child, X, has been experiencing difficulties in relation to the parties’ separation and the Court is mindful of the mother’s assertions that this child has expressed desires to return to the mother’s care. As to the child, Y, the Court notes the lack of specific evidence that he is presently suffering any emotional disturbance by reason of the parties’ separation and the relocation to Sydney, whilst noting the disruption to his usual care by the mother and the potential effect on his likely meaningful relationship with her.

1. In this context, the Court is also mindful of the fact that the father has caused the child, X, to receive ongoing treatment from a registered psychologist and the Court notes the contents of the psychologist’s report of 27 June 2016, annexed to the father’s affidavit filed 25 July 2016. The Court has also noted the father’s evidence that the child, X, was experiencing some behavioural difficulties in Brisbane prior to the relocation to Sydney and involving OOSH. 

2. The Court is also mindful of the mother’s evidence relating to the children’s longstanding ties to Brisbane, including their school and day-care attachments and friendships. Also in this context, the Court notes the father’s evidence that the children are presently in a stable environment in Sydney, attending primary school and day-care centres, and also attending extra-curricular activities.

3. The Court has considered the mother’s contention that the father “seems” to be trying to cut her out of the children’s lives altogether. At this interim stage, the Court is unable to resolve this contention. In this context, the Court notes, for example, the father’s text messages to the mother post-separation relating to the mother spending time with the children. The Court also notes the father’s communications with the maternal grandmother relating to the children’s lives in Sydney recently, whilst acknowledging that it would have been far preferable for the father to have sought to have communicated with the mother directly in these respects.

4. The mother asserts that the father drinks alcohol to the point that he is inebriated on an almost-daily basis. Again, this allegation is denied by the father. On the present evidence before the Court, the Court is unable to make any finding in this respect.

5. The mother asserts that the father is making “false allegations” that she is a risk to the children in order to justify his inappropriate unilateral relocation of the children to Sydney. On the present evidence before the Court, in particular including the body of text messages passing from the mother to the father relating to the children (and the child, A), the Court is unable at this interim stage to resolve that assertion of the mother.

6. The mother’s assertion that the father was historically abusive towards the child, A, and on one occasion was physically abusive towards him, has been noted by the Court but again the Court notes the lack of factual particularity in relation to this assertion of the mother.

7. Despite this arguable inconsistent behaviour by the father, and noting the mother’s allegations and contentions discussed above, which the Court has considered carefully, the Court does remain concerned in relation to aspects of the mother’s past behaviour in relation to the children and other matters, referred to and listed below and which leads the Court to conclude, at this interim stage, proceeding cautiously, that there is a need to protect the children from being subjected to abuse and/or family violence, and there is an unacceptable risk of the children being exposed to abuse and/or family violence, should they be returned to the mother’s care in Queensland, as follows:

   a)The mother’s bad temper, including anger management issues and related physical behaviour by her towards, or in the presence of, the children, when the children have been in her care (again noting the mother’s relevant denials in these respects):

   i)The Court refers to the father’s allegations against the mother of the mother smashing a child’s chair in the presence of the children. Whilst the mother denied this allegation, there is a text message from the mother to the father in which she admits smashing a child’s chair, apparently following an incident involving the children eating their food.

   ii)The text message from the mother to the father in relation to the child, A, dated 25 January 2015, in which the mother admits to striking that child hard on the head and then threatening to bend that child’s finger back, is of concern to the Court.

   iii)The Court notes the text messages from the mother to the father in which the mother admits to slapping the child, X, (although the Court notes that the slap is not factually particularised) and the mother’s acknowledged striking of the child X’s bottom with a wooden spoon, causing bruising. In relation to the wooden spoon event, whilst the Court notes the relevant text messages from the mother to the father regretting her behaviour, it arguably (without the Court making any finding) reveals a loss of control by the mother when disciplining the child, which is of some concern.

   iv)The Court notes the text messages from the mother to the father in which the mother expressed her thoughts of, inter alia, physically harming the children at a time when she was very stressed in dealing with their behaviour. Whilst there is no evidence that the mother on these occasions physically harmed the children, the mother’s expressed thoughts to the father, particularly in the context of other statements by the mother to the father of physical chastisement of the children and the child, A are of concern to the Court.

   v)The Court notes the text messages from the mother to the father in which she acknowledges her bad temper and her need for psychological treatment, including her apparent acknowledgement that her own anger issues have contributed to personality issues relating to the children, A and X. The Court notes there is no independent evidence before the Court as to the mother’s past treatment, if any, related to this anger management issue, or indeed the mother’s acknowledged past treatment for anxiety, noting her present medications.

   vi)Further, the Court notes the father’s (and the paternal grandmother’s) allegations against the mother (disputed by the mother by reference to relevant denials in her affidavit), of potentially dangerous behaviour by the mother involving her, for example, smashing her phone and throwing objects in the presence of the children and potentially dangerous conduct when driving a motor vehicle with the children. There is an allegation by the father and the paternal grandmother that the mother threw a picture frame, which struck X (which allegation, the Court accepts, is disputed by the mother, by reason of relevant denials in her affidavit, and again noting the father’s annexed photograph of the child would appear to pre-date the allegation). These allegations are of concern to the Court, whilst no findings are made.

   b)The father’s allegations pertaining to the mother’s threats to self‑harm:

   i)Again, these allegations were not expressly denied by the mother, although the Court accepts that she strenuously asserts that she poses no risk of harm to the children. Nevertheless, the Court refers to the text messages from the mother to the father, at a time when she was caring for the children, in which she expresses thoughts of self-harm and suicidal ideation. 

   ii)The Court also notes, in this context, the father’s evidence that the maternal grandmother had told him to have the mother committed to hospital “because of her history of mental health issues and anger issues”, (whilst the Court notes that the relevant text message from the maternal grandmother to the father, in this context, is somewhat vague and hard to contextualise). The Court again notes that there is no evidence before the Court as to the mother’s past mental health treatment, and noting the mother’s acknowledged past treatment for anxiety-related issues.

   c)The mother’s arguable lack of family support in Queensland when caring for the children (which by inference is disputed by the mother), noting, inter alia, the allegations by the father and the paternal grandmother of past communications with the mother in which she stated that she was not coping in her care of the children when alone with her (again disputed by the mother):

   i)In this context, the Court also notes the text messages from the mother to the father referring to the mother’s relationship with the maternal grandmother.

   ii)In this context also, the parties are in dispute as to the mother’s current residence in Queensland and the Court makes no findings. The mother asserts that she proposes that she and the children be housed for a period with the maternal grandmother in (omitted) which suburb is stated to be some 15 minutes’ drive from the children’s school and day-care in the Brisbane area, after which she will rent a premises in the (omitted) area.

   iii)The father, in contrast, states that the mother has moved in with her new boyfriend (and the father asserts that he has no relevant details of this person) to a residence on the (omitted), which assertion the mother disputes. In this context, the Court notes the father’s annexed insurance company letter showing an (omitted) address for the mother, arguably as at 22 July 2016, including the mother’s text message to the father stating that she “can’t afford to live on my own”, which raises some concern as to the accuracy of the mother’s contentions as to her housing proposals for the family but again the Court makes no finding.

8. The Court gives significant weight to this “need to protect” primary consideration.

Section 60CC(3) - Additional Considerations

(a) - Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The tender ages of the children do not enable the Court to meaningfully consider this additional consideration, subject to the discussion previously in these reasons (under the “need to protect” primary consideration above), in relation to the mother’s contentions that the child, X, has been expressing strong wishes to the mother to return to her care in Queensland.

(b) - The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to its discussion above under the “meaningful relationship” primary consideration.

2. The Court notes the mother’s evidence relating to the children’s regular contact with the maternal grandmother and other extended family of the mother in Queensland. The Court, in this context, notes the disputed evidence between the parties as to the extent to which the children have contact with that extended family.

3. The Court notes the children’s past and present care by the paternal grandmother. The Court also notes the father’s evidence as to his extended family in Sydney, in particular, the children’s cousins in Sydney.

(c) - The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. The Court has referred to previously in these reasons to the disputation between the parties relating to the extent to which they have cared for the children historically, including in the period from February 2016 to May 2016, which the Court is unable to resolve at this interim stage.

2. The Court notes the parties’ initial separation in about November 2011 for six (6) months, and the litigation which ensued in 2012 leading to parenting orders.

3. The Court notes the father’s Western Australia work from September 2014 to February 2016, which involved absences from the family home for weeks at a time, whilst noting the father’s evidence that this work was taken up for family financial reasons.

4. Otherwise, both parents appear to have so taken such opportunities to the best of their abilities.

(ca) - The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. Both parents appear to have so fulfilled such obligations.

(d) - The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The Court refers to its discussion above under the “meaningful relationship” primary consideration. The Court refers also to its discussion under the “need to protect” primary consideration in relation to, inter alia, the mother’s contentions as to the detrimental effect upon the children in remaining in the father’s care in Sydney, the child X’s psychological treatment in Sydney, and the measures that the father has taken to stabilise the children’s living circumstances in Sydney. The Court refers to the father’s evidence in relation to the children’s new living circumstances in Sydney, including in relation to their new schooling and day-care and extra-curricular activities in Sydney.

(e) - The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. At this interim stage, should the Court not make a recovery order providing for the children to be returned to the mother’s care in Queensland, with the father remaining living in Sydney, there will presumably exist practical difficulties in the mother spending regular time with the children.

2. The mother’s affidavit states that she cannot afford to commute back and forth to Sydney for court attendances, or to collect the children to spend time with her in Brisbane and then return them to Sydney. She refers to her income being about $58,000 per annum, whereas the father’s income is no less than $100,000 gross per annum. The father asserts that his income is significantly less than what the mother asserts it is.

3(f) - The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

1. Subject to the “need to protect” primary consideration issues, discussed above, both parties would appear to have such capacities.

(g) - The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. Again, the Court notes the tender ages of the children.

(h) - If the child is an Aboriginal child or a Torres Strait Islander child: (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);  and (ii)  the likely impact any proposed parenting order under this Part will have on that right.

1. The mother states that her family live in Brisbane and have always been in the children’s lives since they were born. She states that the maternal grandmother’s family are of Aboriginal descent. The mother states that the maternal grandmother, Ms K, has been heavily involved in the children’s upbringing. She states that her father is (nationality omitted). The mother states that the maternal grandmother has always involved the children in and educated them about their Aboriginal heritage and culture, as well as their (nationality omitted) heritage. The mother states that she and the children usually go to dinner at the maternal grandmother’s house once a week and catch up with the mother’s brothers and sisters while they are there.

2. The mother also states in her affidavit that in the next couple of weeks, it will be “(omitted)”, an (country omitted) celebration at the end of a period of fasting. She states that this is a special celebration time for the family. She states that her father and herself have taken the children to (omitted) with her family every year and she intends to continue this tradition.

3. The mother states that the father is neither Aboriginal nor (nationality omitted) and whilst he used to enjoy celebrating the various Aboriginal and (nationality omitted) cultural activities and events of the mother’s family when they were together, he does not do so now that they are separated.

4. The father, in contrast and in response to the above assertions of the mother, asserts that the mother has never shown or exhibited any care to him about her family heritage and culture and has never encouraged the children to learn or experience these cultures. He states that the mother’s family is a (omitted) family of (nationality omitted) and Aboriginal heritage. He states that the mother is not a practicing (omitted) and this has caused conflict between her mother and father. He states that in the time that he has known the mother, she has not, to his knowledge, spoken to her father, and he notes that he did not attend the parties’ wedding.

5. Further, the father asserts that the parties and the children did attend occasional dinners at the maternal grandmother’s house but never to the extent alleged by the mother in her affidavit.

6. The Court is unable to resolve this disputation at this interim hearing, whilst acknowledging that it is important for the children to meaningfully retain their Aboriginal and (nationality omitted) heritages.

(i) - The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.

1. The evidence before the Court at this interim hearing indicates that the parties are in dispute as to the extent to which each parent spent time with the children, particularly in the period following the father returning to live with the family in Brisbane in February 2016 and up to the time when the children were retained in Sydney by the father in about mid-May 2016. The mother, for her part, is critical of the father for not spending as much time as he could with the children, when he was living with the family in Brisbane, whereas the father asserts that he has always spent his available time with the children.

2. The Court is unable to meaningfully resolve this disputation at this interim hearing.

3. The Court also refers to its discussion above under the “need to protect” primary consideration.

(j) - Any family violence involving the child or a member of the child's family.

1. The Court refers to its discussion above under the “need to protect” primary consideration.

(k) - If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.

1. Not applicable.

(l) - Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. This interim hearing dealt with an urgent recovery order application by the mother and it is not possible to meaningfully consider this additional consideration at this interim stage.

Parental Responsibility

1. The Court notes that the parties agreed to an equal shared parental responsibility order in relation to the child, X, on 27 July 2012.

2. At this urgent interim hearing, the mother only sought two (2) parenting orders from the Court, namely, a recovery order and an order that the proceedings be transferred to the Brisbane Registry of this Court.

3. The father, for his part, on an interim basis, seeks an order that he have sole parental responsibility in relation to the children.

4. Noting the significant disputation between the parties at this interim hearing, and in all circumstances, the presumption of equal shared parental responsibility should not be displaced and pending further order, the parties should have equal shared parental responsibility for the children.

Evaluation

1. Evaluating the above-discussed primary and additional considerations under section 60CC of the Act, the Court is of the view that it would not be in the best interests of the children to make the recovery order as sought by the mother. In these circumstances and noting the children’s present care arrangements with the father in Sydney, at this interim stage, an equal-time shared-care arrangement nor a parenting order for substantial and significant time, would also not be in their best interests.

2. Pending further order, it will be in the children’s best interests to make an interim order that they live with the father.

3. The Court proposes to appoint an Independent Children’s Lawyer and have the proceedings mentioned before this Court in about six (6) weeks’ time. The Court would expect the Independent Children’s Lawyer to properly carry out appropriate investigations in relation to the issues in particular raised under the “need to protect” primary considerations discussed in these reasons, including the issuing of relevant subpoenas for the production of documents to the parties and children’s health treatment providers, subpoenas to relevant schools and day-care providers, evidence from the maternal grandmother and other relevant investigations.

4. Further, it will be in the children’s best interests to make an interim order that they spend time with the mother, prior to the next mention date of these proceedings, in accordance with the agreement of the parties, or failing agreement, that they spend time with the mother in Sydney during the day-time in the presence of an agreed adult, or failing agreement, a member of the father’s family, such as the paternal grandmother, Ms Mead. Such time to be spent by the children with the mother should commence, subject to the mother’s availability, on Saturday or Sunday, 6 or 7 August 2016, during a period of at least three (3) hours and then fortnightly thereafter up to the mention date of these proceedings. Accordingly, the Court makes the following orders and directions.

I certify that the preceding one hundred and seventy-one (171) paragraphs are a true copy of the reasons for judgment of Judge Newbrun.

Date: 17 August 2016