MITCHELL & MITCHELL

[2017] FCCA 2574

FEDERAL CIRCUIT COURT OF AUSTRALIA

MITCHELL & MITCHELL [2017] FCCA 2574

Catchwords:
FAMILY LAW – Parenting – six children aged 12, 11, 8, 8, 7 and 5 – competing live with applications – parental responsibility – supervision of time with children – mental health issues – domestic violence – polyamorous relationships – best interest of the child.

Legislation:

Family Law Act 1975 (Cth), Pt.VII

Ams & Aif (1999) CLR 160

Goode & Goode[2006] FamCA 1346

Marvel & Marvel (No.2) [2010] FamCAFC 101
Mazorski & Albright [2007] FamCA 520

MRR & GR [2010] HCA 4

Sampson & Hartnett (No.10) [2007] FamCA 1365

SS & AH [2011] FamCA 8
U & U [2002] HCA 36

Applicant: MS MITCHELL

Respondent: MR MITCHELL

File Number: NCC 1730 of 2017

Judgment of: Judge Middleton

Hearing date: 14 July 2017

Date of Last Submission: 14 July 2017

Delivered at: Newcastle

Delivered on: 14 July 2017

REPRESENTATION

Solicitors for the Applicant: Brennan Garrick Lawyers

Solicitors for the Respondent: Craney Family Solicitors

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. Orders 6, 7, 8 and 9 of the Orders dated 29 June 2017 are discharged.

2. The children [U] born (omitted) 2004, [V] born (omitted) 2005, [W] born (omitted) 2008, [X] born (omitted) 2008, [Y] born (omitted) (“the children”) live with the father.

3. That unless otherwise agreed in writing between the parties, the children shall spend time with the mother each third weekend, commencing on 21 July 2017, from 7pm on Friday until 4pm on Sunday.

4. That in the event that any of the children become distressed whilst in the mother’s care, the mother shall immediately contact the father and the father shall be at liberty to collect the children from the mother and all spend time on that occasion shall be suspended.

5. That unless otherwise agreed in writing between the parties, the father shall deliver and collect the children to and from the (omitted) Police Station.

6. That the children shall have telephone communication including facetime with the mother each Monday, Wednesday and Saturday between 5pm and 6pm and for the purpose of this order:

   (a)That mother shall telephone the father’s mobile telephone during the designated times;

   (b)The father shall ensure that his mobile phone is on, charged and available to the children;

   (c)That father shall ensure that the children answer the phone and they are otherwise provided privacy to talk to the mother, noting that the phone may be on speaker;

   (d)The mother is to ensure that she only talks to the children in a positive manner and does not attempt to negatively influence the children about the father, his partner, their school(s), their residence, or any other matter. 

7. That neither party is to discuss these proceedings to or in the presence of the children.

8. That each party is restrained from denigrating the other party, or the other party’s family, or the other party’s partner in the presence or hearing of the children and each party is to do all things reasonably necessary to ensure that no third person does so.

9. That the parties shall undertake random supervised chain of custody drug urinalysis in accordance with AUS/NZ Standard 4308:2008 within 72 hours of receiving written request from the Independent Children’s Lawyer to do so, on no more than one occasion each calendar month and shall provide a copy of the results to the other party’s solicitor and the Independent Children’s Lawyer within 24 hours of the results becoming available. Such tests shall include testing for lithium or other bi-polar medication.

10. That within 14 days of the date of these orders the parties shall do all acts and things to ensure that the child [V] commences counselling and the child shall continue to attend counselling for as long as her counsellor deems it necessary or beneficial.

11. The children are to be separately represented, and the Legal Aid Commission New South Wales is requested to arrange such representation.

12. Both parties must provide to the Legal Aid Commission New South Wales copies of any relevant orders and reports forthwith.

13. Both parties must provide the Legal Aid Commission New South Wales with copies of any applications and affidavits on which the party relies forthwith.

14. The Registry Manager is requested to forward a copy of these orders promptly to the Senior Solicitor, Family Law Litigation, of the Legal Aid Commission New South Wales of these orders.

15. The mother is to obtain an up to date prescription for bipolar medication and to remain compliant with any prescribed treatment plan including medication.

16. The father is to make available an electronic device to the two older children [U] and [V] so that they can continue to engage with their friends via social media and/or phone.

17. Both parents do all things reasonably necessary and within their control to dissuade any friends or family from commenting about this parenting dispute, either parent or their partners on any social media accessed by the children.

18. The matter is adjourned to 30 October 2017 at 11.30am for further directions.

THE COURT NOTES THAT:

A.The father will do all things reasonably necessary to ensure that the children have access to facetime as soon as practical.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1730 of 2017

MS MITCHELL

Applicant

And

MR MITCHELL

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Mother commenced proceedings on 15 June 2017.

2. The proceedings concerned parenting arrangements for six children; [U] born (omitted) 2004, aged 12, [V] born (omitted) 2005, aged 11, [W], born (omitted) 2008, aged eight, [X], born (omitted) 2008, aged eight, [Y], born (omitted) 2010, she will be seven tomorrow, [Z], born (omitted) 2012, who is five.

3. The parents commenced cohabitation on (omitted) 2001, married on (omitted) 2004 and separated on 24 May 2017. 

4. The father filed his response on 29 June 2017. 

Orders sought

1. The orders sought by the mother are as contained in a minute of orders sought by her and they are that the mother have sole parental responsibility for the children, that the children live with the mother.

2. The children spend time with the father each alternate weekend from Friday at 5.00pm to 5.00pm on Sunday, such further times as may be agreed between the parents. 

3. Changeover between the parents takes place at the mother’s home with the father to do the collection and delivery.

4. The children speak with their father each Monday and Wednesday and Saturday between 5.00pm and 6.00pm when the children are in the care of their mother, with the father to initiate the telephone call. 

5. The mother also seeks that each party shall otherwise facilitate liberal telephone FaceTime communication between the children and other party according to the wishes of the children and that neither parent discusses the proceedings or the other parent or the parent’s family in the presence or hearing of the children and to ensure that the children are removed from anybody doing so. 

6. The mother seeks an order that each party shall keep the other informed of the current residential address and mobile phone number and also in the event the children suffer any serious illness or injury, the party with whom the children are with shall advise the other forthwith.

7. The father seeks orders as outlined in his proposed interim orders. 

8. He seeks a discharge of orders 6, 7, 8 and 9 of the orders dated 29 June 2017.  He seeks that the children live with him. 

9. He seeks an order that, unless otherwise agreed in writing between the parents, the children shall spend time with the mother each third weekend commencing on 21 July from 7.00pm on Friday until 4.00pm on Sunday. With all times to take place in the presence or hearing of Ms M or Mr A, the maternal grandparent and step-parent, that in the event of any of the children becoming distressed whilst in the mother’s care, the mother is to immediately contact the father and the father will be at liberty to collect the children from the mother and the children’s time with the mother should be suspended on that occasion.

10. The father seeks an order that, unless otherwise agreed in writing between the parties, the father shall deliver and collect the children to and from the maternal grandmother’s home at (location omitted), some (omitted) kilometres away from where the father currently resides, if Google Maps is correct. 

11. The father seeks an order that the children shall have telephone communication with the mother each Tuesday and Thursday between 5.00pm and 5.30 pm and, for the purpose of that order, he seeks an order the mother shall telephone the father’s mobile telephone, the father is to ensure the mobile phone is on charge and available to the children, the father shall ensure the children answer the phone and provide privacy to talk to the mother, noting, however, that the phone may be on speaker and the mother is to ensure that she only talks to the children in a positive manner and does not attempt to negatively influence the children about the father or his partner, their schools, their residence or any other matter. 

12. The father seeks an order that neither party is to discuss these proceedings in the presence of the children.  He seeks an order that each party be restrained from denigrating the other party or that party’s family or the other party’s partner. 

13. He seeks random supervised chain of custody drug urine analysis for both parents. 

14. He, by virtue of the way in which that order is crafted, seeks the appointment of an Independent Children’s Lawyer

15. He also seeks an order that within 14 days of the date of these orders both parties do all acts and things necessary to ensure that [V] commences attending counselling as recommended by the family consultant.

Issues in dispute

1. The issues in dispute between the parties are:

   i.Where the children shall reside.

   ii.Whether the children need supervision in the care of either parent.

   iii.Whether the children are at risk due to the mother’s mental health.

   iv.Whether the children are at risk of exposure to family violence in either home and;

   v.Whether the children are at risk of neglect or abuse to drug and alcohol abuse in either home and;

   vi.Whether the father should be forced to return to the (omitted) area.

Background

1. By way of background, the parties have lived in the (omitted) region previously and moved to (omitted) in approximately 2014. 

2. The parents both admit to using cannabis together throughout the relationship.  The parties have conflicting accounts as to both their individual use and use of the other parent. 

3. In 2015, the Department of Family and Community Services (DOFACS) became involved with the family.  The Department, it seems, had concerns about the children’s well being. 

4. The father alleges the mother accused one of the children, [X], of sexually assaulting her sisters.  The child allegedly admitted to touching her sisters’ vaginas.  The Department allegedly came to the conclusion that [X] had lied about doing this. 

5. The mother was assessed by DOFACS regarding her mental health and was subsequently admitted to (omitted) Hospital for two weeks. 

6. The mother accepts she was diagnosed with bipolar disorder and suffers from symptoms similar to those of depression and post-traumatic stress disorder. The mother was provided with an 18-month mental health plan. The plan provided, amongst other things, that the mother take a prescribed bipolar medication. The mother currently does not take medication for bipolar and denies that there is a need to do so.

7. In April of 2017, the parents met Ms C.  The three adults decided to enter into a three-way relationship.  The mother says that on or about 19 May 2017 a verbal disagreement was had between the three adults due to, in the mother’s words, her insecurity over the developing relationship between the father and Ms C.  Subsequently, the police arrived.  It seems the parties calmed down.

8. The three adults, the six children subject to these proceedings and Ms C’s son all remained living together until 21 May 2017. 

9. On 23 May 2017, the father took the mother to the (omitted) Hospital for a further assessment.  This time the police again attended and escorted, for want of a better word, the parties to the hospital.  The mother stayed for approximately four or five hours. 

10. The parents have conflicted accounts as to who instigated conversations with the children about the relationship with Ms C.  It is clear though that the children are aware of the nature of the relationship.

11. The parents agreed to separate on 24 May 2017 after the father expressed his love for Ms C and his desire to start a new life with her.  On 26 May 2017, the father left with all of the children.  The police were present. 

12. The father and the children then left to stay with Ms C at her home and then, one week later, they moved to (omitted), 20 kilometres north-east of (omitted).

13. The father says he has fears for all of the children, himself and Ms C.  He says the mother’s father is an associate of the (omitted organisation) and he possesses weapons.  He does not provide any evidence that he has been threatened by the maternal grandfather. 

14. The children have not spent any time with their mother since 26 May 2017. 

15. The father is now unemployed. 

16. The mother remains living in the rental home at (omitted). 

17. All of the children now attend schools in either (omitted) or (omitted) which is near (omitted).  The father and Ms C have signed a six-month lease on a home in the (omitted) area. 

The evidence

1. The mother relies on the following documents:

   a)Initiating application filed 15 June 2017,

   b)Notice of Risk filed 15 June 2017 and;

   c)Affidavit of Ms Mitchell filed 15 June 2017. 

2. The father relies on the following documents:

   a)Response filed 29 June 2017,

   b)Notice of Risk filed 29 June 2017and;

   c)Affidavit of Mr Mitchell filed 29 June 2017. 

3. The court ordered a child-inclusive conference and a memorandum dated on 12 July 2017 from Ms O is before the court. 

4. There were 15 exhibits tendered before the court.  Some of those exhibits include multiple entries.

The law

1. In terms of the law, informed by the objects and principles contained within section 60B and noting the best interests of the children is my paramount concern, especially under section 60CA.

2. I must make such parenting orders that I think proper pursuant to section 65D. 

3. Parenting orders may deal with one or more of the matters contained within section 64(2). 

4. When determining the best interests of the children, I must have regard to section 60CC(2) and (3). 

5. The mother seeks an order for parental responsibility.  In those circumstances, the parties are directed to section 61D.  Section 61DA provides a presumption of equal shared parental responsibility.  Subsection (3) provides that the presumption applies in interim proceedings unless the court considers that it would not be appropriate in the circumstances for the presumption to apply.

6. Other relevant sections of the Act, having regard to the nature of these proceedings are section 68B and section 114(3) relating to injunctions and section 92 of the Constitution regarding freedom of movement.

Application of the law

1. Goode & Goode[1] which, in summary, sets out that I must follow the pathway and, at paragraph 82, sets out the manner in which I might determine these proceedings.

   [1] [2006] FamCA 1346

2. Marvel & Marvel (No.2)[2] where the court said:

   “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 the child or children.”

   [2] [2010] FamCAFC 101

3. SS & AH[3], another 2010 Full Court decision where the court 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] [2010] FamCAFC 13

4. Further, other relevant authorities which I will discuss later are Sampson & Hartnett (No.10)[4]; Ams & Aif[5]; U & U (2002)[6]; MRR & GR (2010)[7].

   [4] [2007] FamCA 1365.

   [5] [1999] HCA 26; 199 CLR 160.

   [6] [2002] HCA 36; 211 CLR 238.

   [7] [2010] HCA 4; (2010) 240 CLR 461.

Submissions

1. Both the applicant’s solicitor and the respondent’s solicitor provided the court with submissions. 

Mother’s submissions

1. On behalf of the mother, her solicitor made submissions that, if the children were relocated back to (omitted), it would provide more time for them to see both of their parents. 

2. The solicitor for the mother pointed out that the children have been progressing well at school.  Their attendances are good at school.  Their school reports are glowing.  The school reports indicate that the children are self-motivated and good learners. 

3. The mother’s solicitor submitted that, in regards to mental health risk, there is no evidence to support that the mother is at risk.  She conceded on behalf of her client that the mother has a history of mental health, that she has been hospitalised twice and that, during those hospitalisations, the mother disclosed family violence. 

4. The solicitor for the mother indicated that (omitted mental health facility) had discharged the mother earlier this year on a mental health plan, that she would be attending her GP for follow up. 

5. The submissions went so far as to say the mother has re-engaged with Mr J, her case worker for some time. The mother’s solicitor pointed out that the father agreed with the assessment made of the mother at discharge on 21 October 2016 and, at that time, he said he had no concerns with regards to the mother’s mental health.

6. It was submitted that there was no concerns regarding the mother’s mental health until 23 May 2017.  The father insists the mother is suffering from a mental health issue.  The solicitor for the mother took my attention to annexure A of the mother’s affidavit which was a hospital discharge noting that the mother was not manic or depressed and that no mood stabiliser was necessary. 

7. The mother was referred to a community health team.  It was conceded that the mother has not taken mood stabilisers for over 12 months, but says that she smokes marijuana. 

8. It was submitted that the mother’s mental health is stable.  She sees her GP and Mr J, the case worker, and that she is going to counselling with Ms E on 20 July 2017. 

9. In relation to medication, the mother, through her solicitor, submitted that the lithium made her feel like a zombie.  The mother also says that she has ceased using marijuana.  She did that after the father showed the children smoking utensils and/or the marijuana itself.  It was submitted on behalf of the mother that it is highly likely the children would be exposed to illicit drug use in the father’s home. 

10. It was also submitted that Ms C has mental health issues and I was taken to an exhibit at (omitted) which indicated that Ms C, at that time, eight years ago approximately, was self-harming, using IV drugs, had depression and anxiety and drug and alcohol addiction and that she was still using marijuana daily.

1. I was taken to some police events in relation to the father, one for what can be best described as driving under the influence, consuming alcohol above the legal limit, and the other was stealing alcohol and it was pointed out that the police events regarding family violence at times did not support the father’s version but support the mother’s version and it was pointed out that there was an apprehended domestic violence order in place protecting the mother and it was submitted that the psychological impact on the children will be significant if the children stay with the father and finally it was submitted that the mother would be willing to vacate the family home if the father were to return to (omitted).

Father’s submissions

1. On behalf of the father it was submitted that the children report that the mother has been absent them by staying in her bedroom for long periods of time. 

2. It was further submitted that the children report their role in managing the home in terms of cooking and cleaning and getting the children ready for school. 

3. It was submitted that the father had no real choice other than to leave and he moved to an area within 100 kilometres of his family and the maternal family.

4. It was submitted that it would be hard for him to find a place in (omitted) that would house the children, notwithstanding that the mother says she will leave. 

5. It was submitted that there could be potential future consequences for the father in finding alternate accommodation if he were to break a lease and it was submitted that he can afford, in his current circumstances, the rent in (omitted), being approximately $240 a week, whereas a home in (omitted), the home they used to reside in, costs approximately $400 a week.

6. I was taken to the DOFACS documents regarding Ms C and it was pointed out that the entry in relation to intravenous drug use related to a time prior to when her son was born or, indeed, when she was pregnant with her son and it was submitted that there is no recent evidence to suggest that she is an intravenous drug user.

7. It was submitted that the mother has shown a failure to manage her mental health in the past and that there is a flow-on effect for the children. 

8. It was submitted the mother has minimised her family violence.  It was conceded that both parents have issues regarding alcohol abuse.  It was submitted that the children are all indeed good students and that they have shown that they have no difficulty with change, having changed schools in the (omitted) area. 

9. It was submitted that the subpoena material provides some evidence that the mother was the aggressor in relation to family violence and that the police found that she was manipulating the system. 

10. It was submitted that the exhibits tendered in relation to the mother’s mental health would satisfy me that she has a longstanding mental health issue and that she has had difficulty coping with herself from time to time and that this would have a flow-on effect and difficulty with coping with the children and that the children’s comments to the family consultant are in keeping with that submission.

11. In packet 10, exhibit F4, for 23 December 2015, were notes showing poor compliance with the medication lithium which leads to difficulties.  It was submitted that the mother’s past behaviour is a predictor of the future. 

12. It was also submitted that the exhibits revealed that the mother has been found to have poor insight regarding her medication and her disorder and her need for ongoing medication and, indeed, F11, dated 4 February 2016, in packet 10, reveals that the mother needs to continue with lithium indefinitely.

13. F1, on 23 May 2017, it was submitted would satisfy me that the mother lost control on that occasion and made suicidal threats and F2 in packet 12, 31 May 2017, the mother admits to not taking her medication for a year and apologises for lying about it.  She was discharged on 28 April 2017 from her mental health team, provided she remains on lithium. 

14. Then on 1 June 2017, the exhibits reveal that the mother says she does not need her medication and that the mother is vulnerable regarding relapse and again she shows poor insight. 

15. It was submitted that the mother is a risk to the children until and unless she is compliant with her medication regime and I should be cautious with regards to Ms R’s views because the mother has not complied with her regime nor was she honest with Ms R. 

16. Finally it was submitted that there is no support network for the mother in (omitted) as her family reside closer to the father. 

Summary

1. In light of the authorities that I have referred to previously regarding interim hearings and that is that it is difficult to make findings of fact based on the evidence of the parties where they conflict with one another, until such time as that evidence can be tested. 

2. This case, like many, many, many cases before me reveals that the parents agree on very little of substance between them and that there is a great deal that they disagree about. 

3. In light of that fact, it is reasonable for me to place greater reliance upon the objective independent evidence contained within the exhibits.

4. My summary in relation to the exhibits under the headings of Domestic Violence, Mental Health of Ms C, Mental Health of the Mother and Drug Use is this. 

5. The subpoena material when assessed reveals ongoing family dispute involving physical violence and derogatory comment whilst both parents have been affected by alcohol and/or illicit substances at various times over a long period of time. 

6. The material satisfies me that both parties have minimised their own part in that violence and the notes provided show that both parents, in my view, have provided non-factual accounts of the incidents from time to time.

7. With regard to the mental health of Ms C, I am satisfied that any issue Ms C had with intravenous drug use is a thing of the past.  With regards to her mental health, there is insufficient evidence before me to satisfy me that she has an issue at this time. 

8. With regards to the mental health of the mother, the exhibits satisfy me that there is a long history of mental health issues of the mother.  They satisfy me that the mother has been unable to manage her bipolar disorder from time to time. 

9. The exhibits satisfy me that the mother needs to be medicated, that she lies about taking her medication and that only with ongoing compliance with her medication regime could she consistently and properly manage her disorder.

10. In relation to drug use, the mother says she does not use now.  In light of the dishonesty that I have found around her accounts of family violence and her accounts of complying with medication, I cannot believe her. 

11. The father admits to his ongoing drug use.

Sections 60CC matters

1. Turning to the relevant sections of the Act[8], subsection 60CC(2)(a):

   “60CC(2)  The primary considerations are:
   

   [8] Family Law Act 1975 (Cth)

    (a)  the benefit to the child of having a meaningful relationship with both of the child's parents;”

2. All of the children were interviewed by the family consultant and they all variously said that their mother spent a great deal of her time in her bedroom. 

3. Indeed, the children all said it was the older two children who got them up and fed them breakfast most days.  It is also clear that the two older children do a good deal of the household chores and that both parents place great demands on the children. 

4. All of the children said that they miss their mother.  The children describe their father as “nicer” and that he looked after them. 

5. It is clear that the children would all benefit from a meaningful relationship with both parents if that is at all possible. 

6. Section60CC(2)(b), the need to protect:

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

7. There has been family violence in the home and the children have been exposed to it.  The mother, it would seem, on one occasion hit one of the children in the head and flicked another with a shirt. 

8. The child affected by those incidents discussed them with the family consultant, one saying she cried because she was physically hurt and had her feelings hurt. 

9. The mother has been diagnosed with bipolar.  She admits to not taking medication for this and, although she says she is seeing her GP regularly, she also admits to not seeing a counsellor for this disorder or for PTSD which she says she has symptoms of. 

10. I note, however, the mother has an appointment on 20 July.  It is an issue which needs to be properly explored.  I have concerns about the mother’s mental health, particularly noting that she is not medicated. 

11. It is very rare, in my view, that bipolar goes away of its own accord or that it can be effectively treated without medication.  I note the mother currently has a plan that says she must be medicated and take her lithium.  In those circumstances, caution is warranted.

12. Both parents admit to cannabis use over a long period of time and to drinking up to a six pack each of pre-mix bourbon most days.  Both deny that this usage affects their individual capacity to meet the children’s needs, but both say the other’s capacity was affected by this usage.

13. With regards to domestic violence, the children supported the father’s position, that is, that the mother was more the aggressor.  However, all children said that they had been frightened by the violence between their parents.  As I say, it is noted, however, that an apprehended domestic violence order was in place for a year with the mother nominated as the person in need of protection. 

14. There is no evidence that the father and Ms C have engaged in family violence between them. 

15. There is evidence that there was a dispute which ultimately involved the police attending with all three of the adults in this matter.

16. At this stage, on the scant evidence before me, I am inclined to find that the family violence between the mother and father was situational couple violence.  The parents are no longer together.  The children do not complain of arguments or violence between the father and Ms C. 

17. Assessing that evidence, I am of the view that a cautious approach is warranted as the authorities suggest, that is, until such time as I am satisfied that the mother’s mental health is properly addressed and I am satisfied as to the level and nature of both parties’ drug and alcohol usage.  It would be a good idea for both the mother and father to reduce their alcohol use and to stop their illicit drug use.

    “(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;”

18. The children have all said that they want to remain living with their father. 

19. Some children said they wanted a shared care arrangement and one child said she would prefer to spend slightly more time with the mother. 

20. Neither parent seek to split the siblings and that is certainly not in the children’s best interests, having regard to their ages and the fact that they have a major disruption to their lives currently.

    (b)  the nature of the relationship of the child with:

        (i)  each of the child's parents; and

(ii)  other persons (including any grandparent or other relative of the child);

1. I am satisfied that the children have a close bond with both parents. 

2. However, a number of the children saw the father as more engaged and kinder. 

3. A number of the children commented on how difficult the mother was with them during the observation session saying she was different from her usual self and that normally she would refuse to come out of her room and play with them and would often ignore their requests for assistance.

   “(c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and
   (ii)  to spend time with the child; and
   (iii)  to communicate with the child;”

4. There is little uncontested evidence that could assist me in making any determination on this point, suffice to say that DOFACS have been involved with the family and there appears to be a level of dysfunction in both parents.

   “(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;”

5. No evidence.

   “(d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
         (i)  either of his or her parents; or
        (ii)  any other child, or other person (including any grandparent          or other relative of the child), with whom he or she has been living;”

6. The father has now moved some four hours away from (omitted).  All of the children are with him.  Most appear to be happy to stay with him. 

7. The children have all changed school, lost friendships in the (omitted) area, which is a disadvantage, and the children all have to adjust to life in a new location. 

8. As a result of the distance between their parents, the children’s relationship with either parent will be disadvantaged no matter who they reside with.  The father’s decision to move so far away is most unfortunate and shows a lack of insight into the needs of the children.

9. Again because of the distance, there is a practical difficulty and expense associated with the children spending time with the non-resident parent.  That difficulty, if it persists, will substantially affect the children’s right to maintain personal relations and direct contact with both parents. 

   “(f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  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;”

10. I am of the view, in relation to (f), that both parents’ capacity to provide for the needs of the children is limited. 

11. It is limited as a result of drug and alcohol abuse and a lack of insight on both of their behalves. 

12. This is a matter where I must decide which of the two households will cause the least amount of harm.  It is a fine line.

    “(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;”

13. Both parents were willing to share their bed with another woman.  Both were happy to introduce Ms C to the children within weeks of them meeting her as their partner. 

14. Perhaps the children were used to this type of arrangement, perhaps not.  If they were not, I imagine the situation could cause the children confusion, some internal conflict and some embarrassment amongst their peers.  It is an unusual situation and all the political correctness in the world would not stop other children asking potentially difficult questions. 

15. It is unknown if the father and Ms C will continue to look for other suitable partners or, indeed, whether the father and Ms C will remain together. 

16. Both parents need to focus on their children at this difficult time and, in doing so, need to provide certainty and stability.  It would be advantageous to these children if they both stabilised their lives.

    “(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;”

17. Is not relevant.

    “(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;”

18. The evidence before me suggests that both parents have put their needs ahead of the children.  In this regard, they have both demonstrated a poor attitude towards the responsibility of parenthood. 

    “(j)  any family violence involving the child or a member of the child's family;
    (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:
       (i)  the nature of the order;
       (ii)  the circumstances in which the order was made;
       (iii)  any evidence admitted in proceedings for the order;
       (iv)  any findings made by the court in, or in proceedings for, the order;
     (v)  any other relevant matter;”

19. I have previously discussed this. 

20. The subpoena material might assist in ascertaining the circumstances involved in the granting of an apprehended domestic violence order to protect the mother. 

21. I am not sure at this stage whether it was by consent or otherwise, but, in any event, it has now lapsed and is no longer current.

    “(m)  any other fact or circumstance that the court thinks is relevant.”

22. There are no other matters I consider relevant. 

23. The evidence satisfies me that, if the father were contemplating a move to (omitted), I would prevent him from doing so by way of an injunction.  He has moved. 

24. I have the power to make a coercive order pursuant to section 65D, 68B or, indeed, 114(3).  Sampson & Hartnett (No.10) (2007)[9] tells me so.

    [9] [2007] FamCA 1365.

25. Section 92 of the Constitution provides freedom of movement between the States. The impact of this section has been considered by the High Court in the context of relocation cases involving interstate movement.

26. I am satisfied that it relates to long-distance movement as well and on the basis that freedom of movement is reasonably necessary to carry out the objects of Part VII of the Family Law Act. 

27. The result has been not to read down the relevant section of the Act, but to highlight the freedom of movement is an important factor to take into account as was decided in the case of Ams & Aif[10]. 

    [10] [1999] HCA 26; 199 CLR 160.

28. In U & U[11], the High Court, through Gummow and Callinan JJ said at paragraph 89:

    “Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration of the welfare of the child if that were to be adversely affected by a movement of a parent.”

    [11] [2002] HCA 36; 211 CLR 238.

29. In Sampson & Hartnett (No.10)[12] the majority carefully considered each section of the Act that could possibly provide the power to order relocation, that is, order a party to relocate.  I refer to 64B, 68B, 114(3) and 65D and also to section 60B, the Objects of the Act.  They said this at paragraph 45:

    “As seen, the sections are replete with references to parental obligations and duties.  The first object of section 60B is to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child.”

    [12] [2007] FamCA 1365.

30. At 46, they continued:

    “These and other provisions support the notion that, the parties having surrendered the resolution of dispute about parental arrangements to the court, the court has the function of crafting orders that ensure the best parenting arrangement is put in place and that parents “fulfil their duties, and meet their responsibilities.”

31. They went on:

    “It is entirely consistent with that function that parenting orders, and orders that support those orders, such as injunctions, be directed to the parents and place obligations upon them.”

32. At paragraph 58, the majority concluded:

    “However, we conclude there is power under section 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child.  The proper exercise of such a power is likely to be rare, because:

    (i)the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and,

    (ii) in a parenting case, an order directed to a parent to relocate or not will likely serve a useful purpose if that parent is to then discharge a particular role as a parent.  If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous.  If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of the parent’s choosing.”

1. In relation to “meaningful relationship”, Brown J in Mazorski & Albright[13] in 2007, after setting out the definition of “meaningful” and its meaning, said this at paragraph 26:

   “What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.  I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitative one.  Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equal shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.”

   [13] [2007] FamCA 520.

2. It follows that it will be very difficult for the children to have a meaningful relationship with their mother in circumstances where she is so far away. Her ability to be involved in the children’s schooling, for example, her ability to engage in afterschool activities with the children, her ability to attend the school for special events are all affected by that tyranny of distance. 

3. The father says he wants the mother to have a meaningful role with the children.  He wants the mother to be well before that can occur.  He needs to give some thought to what a “meaningful relationship” is.

4. At paragraph 75 in Sampson[14], the Full Court said:

   “To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move.”  

   [14] Sampson & Hartnett (No.10) [2007] FamCA 1365.

5. In MRR & GR[15], the High Court considered section 65DAA and stated it is expressed and imperative terms.  At paragraph 15, the High Court emphasised that:

   “Section 65DAA is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time or substantial and significant time spent by the child with each parent and that reality requires a practical assessment of the feasibility of an order for equal time or substantial and significant time.”

   [15] [2010] HCA 4; (2010) 240 CLR 461.

6. I am satisfied that, at this time, the evidence supports a finding that the children should remain living with their father and that he will take on the role as the live-with parent. 

7. Can I be satisfied on the evidence that the practicalities of life equally or sufficiently exist in the place to which the party is required to move, namely, (omitted)? 

8. The evidence establishes that the father is unemployed.  He could be unemployed anywhere.  The father has entered into a six-month lease.  He has limited financial resources and means. 

9. If he were forced to break the lease, this could have a disadvantageous financial effect to him and, as a result, the children.  It could also have a disadvantageous effect for him if he needs to find suitable accommodation the (omitted) area.  I note, however, the mother is willing to give up the home.

10. The mother has no capacity to assist the father financially as she is on a disability pension.  There is no evidence before me that could satisfy me that suitable housing is maintainable in the (omitted) area, having regard to the costs of that home. 

11. The costs of the home in (omitted), I am told, is approximately 240 a week and the cost of the home in the (omitted) area is $400 a week.  That is a significant difference. 

12. The father and the children currently reside in a five-bedroom home.  I am satisfied that there is adequate schooling in both locations and I am satisfied that the children are able to adapt to change.

13. The evidence satisfies me that the children’s best interests at this time are met by living with their father and, until such time as the mother’s mental health and substance abuse is under control, spending limited time with their mother. 

14. As the majority said in Sampson[16], there is power to enjoin a parent to relocate provided that injunction is no more than is necessary to secure the best interests of the child. 

    [16] Sampson & Hartnett (No.10) [2007] FamCA 1365

15. The children’s best interests at this time can be met by the children remaining where they are and travelling to visit their mother. 

16. In those circumstances, there is no need to force the father to relocate at this time.  That is not to say that such injunction might be necessary in the future or that, in the future, the children do not change residence.

17. As emphasised by the High Court in MRR & GR[17], section 65DAA is concerned with the reality of the situation. 

    [17] [2010] HCA 4; (2010) 240 CLR 461.

18. Turning my mind to that section, it is immediately apparent that it is not in the children’s best interests for an equal time order or a substantial and significant order for the reasons previously given, nor is it reasonably practicable for either order, again for the reasons previously given and the fact of the great distance between the parents.

Parental Responsibility

1. Being an interim hearing, are there circumstances that would make it inappropriate for the presumption to apply?[18] 

   [18]  Family Law Act 1975 (Cth) s 61DA(3)

2. The family consultant is of the view that currently there is a very poor relationship between the parents, with minimal communication.  This, along with the fact that there has been longstanding conflict and violence between the parents and that the mother potentially has some unresolved mental health issue, all point to a finding that there are circumstances that make it inappropriate for the presumption to apply at this time.

Is there a need for supervision? 

1. On the evidence currently before me, I am not satisfied that there is a need to supervise the children’s time with their mother. 

2. While there has been one incident of harm to the children when the parties were together, I am not satisfied that the mother poses such a significant risk that the children need to be supervised in her care. 

3. I am confident that the mother will be attentive to not only her own needs, but the children’s needs whilst they spend time with her in accordance with my orders.

4. For those reasons, I am of the view that the following orders should be made.

I certify that the preceding one hundred and sixty six (166) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date: 14 July 2017