Molloy and Molloy
[2011] FMCAfam 364
•20 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOLLOY & MOLLOY | [2011] FMCAfam 364 |
| FAMILY LAW – Child aged 6 years – arrangement for care pending final hearing – unilateral relocation of chid from Adelaide to Tasmania – mother asserts move dictated by father’s behaviour towards her – family violence – assessment of risk – considerations relating to relocation – section 60CC factors – best interests. |
| Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA |
| Goode & Goode (2006) FLC 93-286 C & S [1998] FamCA 66 D and S V (2003) FLC 93-137 Godfrey v Sanders (2007) 208 FLR 287 Amador & Amador (2009) 43 Fam LR 268 JG & BG (1994) 18 Fam LR 255 Morgan & Miles [2007] FamCA 1230 |
| Applicant: | MS MOLLOY |
| Respondent: | MR MOLLOY |
| File Number: | ADC 4588 of 2010 |
| Judgment of: | Brown FM |
| Hearing date: | 14 April 2011 |
| Date of Last Submission: | 14 April 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 20 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms DuBarry |
| Solicitors for the Applicant: | Legal Services Commission of Tasmania |
| Counsel for the Respondent: | Mr Warburton |
| Solicitors for the Respondent: | Warburton Solicitors |
ORDERS
The mother return the child [X] born [in] 2004 hereinafter referred to as “the child” to Adelaide by 5:00pm on 6 May 2011.
UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:
In the event the mother elects to live in Adelaide, pending final hearing, the child live with the mother and spend time with the father as follows:
(a)on alternate weekends from after school on Friday until school commences the following Monday morning; and
(b)for the first half of each school holiday period.
In the event the mother elects not to return to live in Adelaide, pending the final hearing of this matter, the child live with the father and spend time with the mother at times to be agreed between the parties or as otherwise directed by the court.
In the event the mother fails to comply with order 1 hereof a recovery order issue in the normal form authorising the Marshall of the Court and officers of the Australian Federal Police to locate the child and deliver her to the father.
An injunction issue and each party be restrained from changing the child’s place of residence to one outside the municipal area of Adelaide without the written consent of the other.
An injunction issue and each party be restrained from denigrating or rebuking the other or discussing these proceedings in the presence of or hearing of the child.
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child [X] born [in] 2004 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to
Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
The matter is fixed for final hearing before Federal Magistrate Brown on 19 September 2011 at 10:00am NOTING 3 days allowed.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by
15 June 2011.
The Family Report to deal with the following matters:
(a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
Further consideration of this matter is adjourned to 30 June 2011 at 9:30am to enable trial directions to be made.
Each party has liberty to re-list the matter on short notice in respect of any matter arising from these orders.
IT IS NOTED that publication of this judgment under the pseudonym Molloy & Molloy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 4588 of 2010
| MS MOLLOY |
Applicant
And
| MR MOLLOY |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Molloy “the mother” and Mr Molloy “the father” are the parents of [X] born [in] 2004.
The mother asserts that, because of her fear of the father, she had no alternative but to relocate herself and [X] from [N], a suburb of Adelaide, to an as yet unspecified address in Tasmania.
The father was not consulted about [X]’s move. He denies that he is a violent person. It is his case that he loves [X] dearly and wishes to be involved in her care.
Accordingly, he is opposed to [X] living in Tasmania because it is likely to mean he will be unable to see her regularly and this will disrupt the close relationship the two have previously enjoyed and will prevent [X] knowing members of her paternal family, who live in Adelaide.
The father’s position is as follows:
“..She claims that she moved there as she has fears for her safety, and she also moved there to gain support from her family. I have issues with both of these aspects. The claims about her safety made by Ms Molloy have either been highly exaggerated or completely made up. She has offered little in the way of evidence to support her claims. Furthermore, I feel that she has taken a rather drastic approach, surely there are other ways to resolve matters rather than just running away to another state and upsetting all her children’s lives.”
The parties met in 1998. They married [in] 2003. The mother has two children from an earlier relationship, [Y] born [in] 1998 and [Z] born [in] 2000.
[Y] has some special needs. He suffers from Perth’s Disease, which has led to a degeneration of his hips. He also has some learning difficulties. These children came to live with the parties in 2005 and 2007 respectively. Previously they had lived with their father.
The father’s parents, his three brothers and four cousins all live in Adelaide. It is the father’s position that these family members saw [X] regularly and had a good relationship with her.
It is the father’s position that the mother has a poor relationship with members of her family. It is his case that the mother has some emotional difficulties and is not being completely honest about the real reasons why she has wanted to move to Tasmania.
The mother commenced these proceedings on 6 December 2010. She prepared her own documents. She sought orders that [X] live with her. She had no proposals as to what time [X] should spend with her father. She did not initially raise the issue of her moving to Tasmania.
In her supporting affidavit, the mother asserted as follows:
·In September 2007 the father had threatened to punch in her head and kill her, whilst the parties had been at a shopping centre car park;
·She was frightened of the father because of his previous involvement with a skinhead gang and because he had served time in jail;
·The father had raped her during the course of the parties’ marriage;
·The father had been verbally abusive towards her, in front of the children.
It is common ground between the parties that the mother has never sought to obtain a domestic violence restraining order against the father. In addition, her various complaints against the father are not supported by any complaints made to the police.
At this early stage, the mother’s case was supported by a letter dated March of 2009, from a social worker, which indicated that the [N] Health Village had been supporting the mother, for the past six months, in respect of issues to do with domestic violence.
The mother also asserted that she had done “everything humanly possible” to support [X]’s relationship with her father but she asserted that he (Mr Molloy) “had shown a total disregard” for her safety. In particular, the mother asserted that the father had driven in an aggressive manner and had been abusive and intimidating towards her, at pick up and drop off.
In addition, she asserted that Mr Molloy had sent her antagonistic and threatening emails. She supplied some copies of these emails, in which I struggle to find anything either threatening or aggressive. In my view, the tone of the emails is measured.
The mother’s application was made returnable on 1 February 2011. The father was served with the application on 23 December 2010. The day on which Ms Molloy left for Tasmania.
On 28 January 2011, the mother filed an application, in which she sought the transfer of the proceedings from the Adelaide registry to the registry of the court in Hobart. She filed a brief affidavit in support of her application.
In this affidavit, she deposed that she had “fears for our safety from the respondent and have sought refuge from my family in Tasmania.” The mother did not specify what her fears were.
The father responded to these various applications on 22 February 2011. He had not sought legal advice and had prepared his own answering affidavits.
It was his case that from the date of separation until September of 2010, he had had a reasonably amicable relationship with the mother and had been able to see [X] on a weekly basis.
However, around about September 2010, he asserted that the mother had become increasingly resistant to him seeing [X] regularly and this had led him to correspond electronically with her, in which correspondence he raised the possibility of him seeking legal advice. It is his case that following this indication, the mother unilaterally withdrew [X] from him.
In an email, dated 1 October 2010, Mr Molloy wrote as follows to
Ms Molloy:
“I’d really like to sort out what’s going on, especially for [X]’s sake. I’m not sure what I’ve done wrong, I have tried everything I can to get along with you lately. I see [X] when you want me to see her. Whatever it is, I hope that you can talk to me about it. It isn’t going to go away by itself.
We’ve know each other for fourteen years, and we were good friends for most of that time. Surely, we can work out whatever is going on between us. We are going to have to deal with each other for the rest of our lives. I’d much rather do it as friends, rather than enemies.
I hope that you respond to this. [X] is about all I have left in the world, and I will do whatever it takes to keep that relationship with her intact.”
The father denies that his overtures to the mother were either intended to be aggressive or are capable of being construed as such by a reasonably minded person.
As previously indicated, he denies that he is a violent person, and, at this stage, provided a national police certificate indicating he has no disclosable police history. He obtained this certificate so that he could be the coach of [X]’s soccer team.
Mr Molloy denied having spent time in prison or being a member of a gang. He denied sexually assaulting the mother.
At the first mention of the matter, both parties were self represented and the evidentiary material before the court was lacking in detail.
Mr Molloy seemed uncertain as to what he should do and wished to obtain legal advice.
For her part, the mother appeared surprised that [X] having to return to Adelaide, pending a more comprehensive examination of the applicable evidence in the case, might be a possible outcome of the matter at the interim stage. Given these circumstances, Ms Molloy also wished to seek further legal advice.
Against this background, I referred the parties to a family dispute resolution conference, which was held on 23 February 2011. The parties were unable to reach any comprehensive agreement about the ongoing care of [X], other than that it was agreed that the father would telephone her on two occasions each week.
The father filed a comprehensive response and affidavit in support, prepared by his solicitors on 17 March 2011. It has taken the mother longer to obtain legal representation. This has led to the interim hearing, regarding the interim relocation issue being delayed.
On 8 April 2011, the mother filed the following documents:
i)A notice of family violence;
ii)An affidavit of herself;
iii)An affidavit of Mr K;
iv)An affidavit of Mr G.
The legal principles applicable
Interim hearings have to take place in a shortened form. There is no time available for the cross examination of the parties concerned. In addition there is usually insufficient time for all the available evidence to be to hand. The most common evidence, which is not available at the interim stage, is in the form of subpoenaed documents and any expert assessment which has taken place of the family concerned.
These types of evidence, coming as they do from independent sources, are very often central to the resolution of parenting cases at the final stage. In addition, for obvious reasons, at the final hearing stage, the parties concerned have more time to prepare their cases and call all the necessary witnesses.
Necessarily, the final hearing is a longer one than the interim hearing, which allows the court to make any necessary findings of fact – essentially deciding what evidence it accepts on the balance of probabilities, following its assessment of the truthfulness or reliability of the relevant witnesses.
As such, at the interim stage, it is very often impossible for the court to resolve disputed issues of fact. The central issue in dispute between the parties, in the present case, is whether the father is the violent and abusive person portrayed by the mother.
The essential difference between an interim and final decision is that interim hearings do not determine long-term arrangements for the care of the child concerned, whereas final hearings do. However although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage.
In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act 1975 [see section 60CC].
What have been called the best interest considerations rest on two main pillars. The first is the importance to children of having a meaningful relationship with both parents. The second is the need to protect children from physical and psychological harm as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary consideration in how a court determines what is in the child's best interests by section 60CC(2).
Other criteria relating to how a court is directed to consider how the best interests of any children concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
There is a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility for him or her. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should “spend” equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
In the case of Goode & Goode[1], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[1] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
Given the structure of Part VII of the Family Law Act, cases involving one parent wishing to move a major distance away from the other parent concerned raise significant issues for the court and the parties concerned. Such cases throw up competing principles, which are difficult to reconcile.
On the one hand, one of the purposes of the Family Law legislation is to provide former partners with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children, in the now changed circumstances following the end of the marital or de facto relationship between them. There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned chose not to live together. It has been said that relocation cases need careful analysis.[2]
[2] See C & S [1998] FamCA 66
Accordingly, it is usually considered preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocations may have potential serious ramifications for the children concerned, especially when those children are young, in terms of their ongoing parental relationships.
The consequence of any proposed move does not turn on the distance involved alone. In determining the consequences of such a move, what is likely to be highly relevant is the age of the child concerned.
For obvious reasons, the move of a baby or pre-schooler, in terms of the development of parental attachment, will be very different to those for a teenager, whose parental relationships are likely to be well established.
In addition, there may be financial considerations arising from the move. Wealthier families are able to cope more easily with issues of relocation because of their greater financial resources. Less financially equipped families may struggle to meet the fuel or other transport costs involved in relatively short moves.
In many circumstances, children are frequently able to maintain their relationships with significant people, including a parent, by less frequent periods of quality time spent in school holidays, which is supplemented by other forms of communication, such as telephone, webcam or letters.[3] As Kay J pointed out in Godfrey v Sanders[4] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[3] See D and S V (2003) FLC 93-137 at 78, 280
[4] See Godfrey v Sanders (2007) 208 FLR 287 at 298
It is a common occurrence, in contemporary Australia, for a parent to move voluntarily away, from a child or children concerned, after a relationship breakdown. In addition, children are often relocated away from one of their parents, as a result of a consensual decision made by the parents concerned. Often financial imperatives are involved.
These types of situation come about because of the high level of mobility in Australian society and the reality that many parents wish to pursue career and personal opportunities, in a different place to that in which they lived whilst in a relationship with the other of their child’s parents. High rates of divorce are also an incident of modern Australian life.
Although the shared parenting legislation has added emphasis to the principle that children benefit, in their emotional and social development, by having as extensive a relationship as possible with both their parents, there is no principle of law that the parents of children are required to live indefinitely close to one another, in order to ensure that such an optimal outcome is achieved. The recent legislative amendments have not changed this situation.
Pursuant to rights read into the Australian Constitution, Australians have a right to live how and where they choose. Australia is a free and democratic society, which prizes the freedoms of its citizens. Accordingly, the court cannot ignore the legitimate expectations of parties who come before it regarding these personal freedoms.
However, the best interests of any child concerned remain the paramount consideration in the outcome of every type of parenting case, including a relocation one. As one of the components of a child’s best interest is the right to have a meaningful relationship with both his or her parents, I must consider the adequacy of the arrangements proposed by the relocating parent for any child concerned to spend time with the other parent involved.
The provisions of the Family Law Amendment (Shared Parental Responsibilities) Act have added emphasis to the importance of a child maintaining a meaningful level of relationship with both of his or her parents.
However, they have not specifically prohibited the movement of a child away from one of his or her parents or placed some specific evidentiary onus upon the parent wishing to relocate. If the legislature had intended to prohibit such relocations, it would have specifically done so.
Rather, what the court is required to do is to weigh and balance the primary considerations and the additional considerations in respect of the parties’ competing proposals, to determine the best outcome for the child concerned.
In so doing, it cannot ignore a parent’s entitlement to freedom of movement. In my view, it is incumbent upon the court to consider these various principles at both the interim and final stage. I think this follows from the directions provided by the Full Court in Goode.
However, given the more limited evidence usually available at the interim stage, the court must exercise considerable caution, in respect of such relocation issues, when the evidence before it is necessarily provisional and untested.
Accordingly, the Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.[5]
[5] See C & S [1998] FamCA 66
The mother’s case
In cases involving significant allegations of family violence or child abuse, the Family Law Rules mandate that the person making such allegations should detail them in a formal notice, which can be provided to the relevant child protection authority for independent investigation. The mother has filed such a notice.
In this notice, she alleges as follows:
·In September 2007, the father threatened to punch her head in and to kill her, at the [omitted] Shopping Centre car park.
·On several occasions, the father called her a “bitch” and a “fucking whore”. The father slammed a door and punched a wall, damaging both items of property.
·The father kicked and threw objects around, when angry.
·The father yelled in [Y]’s face.
·The father isolated the mother and engaged in jealous and controlling behaviour.
·The father engaged in inappropriate and forceful sexual behaviour with her.
·In August and October 2010, the father drove away from the mother’s home in an aggressive manner.
Many of the mother’s complaints of family violence occurred prior to the parties’ separation. In addition, the complaints are, in my view, inchoate. As previously indicated, the mother has not made any complaints to the police about this behaviour or attempted to obtain a family violence order against the father.
Mr G was the mother’s next door neighbour. He deposes that in August and October of 2010, he heard a male voice yelling from the mother’s home and observed a person rev his car engine and screech the tyres.
Mr K is a friend of the mother. He deposes that he has seen Mr Molloy using intimidating language towards the mother, which caused the mother to be upset. He categorises the father as possessive and controlling of the mother.
The mother’s case is posited on the basis that Mr Molloy exhibited coercive and controlling violence towards her, which included acts of extreme jealously and abhorrent and abnormal sexual behaviour, the effect of which was to demean and humiliate her.
She deposes that it is very difficult for her to provide these details in the semi-public setting of these court proceedings. By necessary implication, this is the explanation proffered as to why her complaints have not been previously raised with any other authority and are lacking in independent corroboration.
The mother asserts that she was fearful that Mr Molloy would react badly to her initiating affidavit. In these circumstances, she contacted the police, who advised her that, as there were no police reports of any earlier incidents, there was nothing that could be done to protect her. The mother deposes that the police advised her to leave her residence, if she remained fearful of Mr Molloy. This was the background to her leaving South Australia.
The mother also deposes that she is scared of interacting face to face with Mr Molloy and is apprehensive that her fear of him will adversely impact upon her ability to parent [X] properly, particularly if she is compelled to return to Adelaide against her wishes.
The mother deposes that she is currently living in comfortable accommodation, with [X], [Y] and [Z], in Tasmania and [X] in particular has settled in well at her new school.
The mother’s case is that she is financially unable to return to Adelaide, as she has utilised all her savings to move to Tasmania. The mother can now see nothing positive for herself and the children in South Australia. It is common ground between the parties that they have previously lived in the Adelaide area for many years.
The mother has no concrete proposals to return to Adelaide in the foreseeable future. It is her case that if Mr Molloy wishes to spend time with [X], it will be necessary for him to visit her in Tasmania. In these circumstances, due to her concerns about either herself or [X] interacting with Mr Molloy, she proposes that he spend time with [X] only in a professionally supervised setting.
The father’s case
The father denies that he has ever threatened the mother with physical violence. He does however agree that the parties have had arguments from time to time. He also denies that he has ever sexually forced himself upon the mother.
Mr Molloy categorises his behaviour towards the mother, in the period since the parties have separated, as being reasonable and conciliatory. He asserts that the mother has been difficult to deal with and has attempted to place unreasonable barriers between him and [X], most recently by moving unilaterally to Tasmania.
He deposes that he and [X] enjoy a good relationship together and she enjoys spending time with him. It is his case that when he has attempted to play a more active role in [X]’s life, the mother has reacted badly.
The father currently shares a two bedroom unit with his brother, who has mobility issues. The father provides assistance to his brother and as a consequence cannot easily relocate to Tasmania.
At the current time, Mr Molloy is not in a strong financial position. He had been undergoing tertiary studies but has recently deferred them, in part as a result of the current proceedings. He is in receipt of social security payments as his major source of income. He has some part-time work.
Mr Molloy disputes the mother’s assertion that she has gone to Tasmania to seek support from members of her family, who live there. It is his case that the mother has never been close to her family. He suspects that the mother has some ulterior motive, relating to her wish to pursue a relationship with another person, which is the real reason why she has moved to Tasmania.
Consideration of the applicable section 60CC factors
a) The primary considerations
At the interim stage, allegations of family violence pose a significant difficulty for the court. Such allegations are often difficult to corroborate or establish definitively. However all allegations of family violence must be closely examined by the court, given the serious consequences exposure to family violence may have for any child concerned.
Allegations of family violence are easy to make and difficult to refute. This is because family violence, more often than not, arises within the private confines of a family home and may evoke emotions such as embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised that family violence is prevalent in all social settings and walks of life.
It is also not unknown for parties who are engaged in acrimonious litigation with one another, regarding competing applications in respect of children, to raise issues of family violence for tactical reasons or to exaggerate or distort previous episodes of poor behaviour, in order to place the other parent concerned in a bad light.
However the absence of corroboration does not abrogate the court’s responsibility to deal with allegations of family violence stringently.[6] The court’s responsibility is to remain focussed on the best interests of the child concerned in the proceedings before it.
[6] See Amador & Amador (2009) 43 Fam LR 268
The concept of family violence is specifically defined in the Family Law Act [section 4]. It means conduct, whether actual or threatened, by a person towards another or towards the property of a member of a person's family that causes that or any other member of the person's family reasonably to fear for or reasonably to be apprehensive about his or her wellbeing or safety.
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Obviously the latter behaviour is the more damaging so far as children are concerned.[7] Not all incidents of family violence will be necessarily damaging for a child.
[7] See JG & BG (1994) 18 Fam LR 255 at 261
Given that family violence is not homogenous in its qualities and can arise in a variety of context, at the interim stage, it is necessary for the court to assess the degree of risk which may come to any child concerned, if he or she comes into contact with the perpetrator of the alleged violence. It may also be necessary for the court to assess the consequences of such an outcome for the other parent and victim of the alleged behaviour.
These concerns must be balanced against the potential benefits to the child or children concerned of having a meaningful level of relationship with both of his or her parents. It seems likely that
Mr Molloy has played a significant role in [X]’s life, up to this stage. The two shared the same household until the parties separated. Thereafter, Mr Molloy saw [X] regularly.
Accordingly, [X] is likely to benefit from interacting regularly with both her parents. The emphasis in the applicable legislation is on the benefits to a child of meaningful parental relationships. Meaning in child/parent relationships is likely to come from parent and child being able to interact in a variety of circumstances and conditions.
The opportunity to interact with a loving parent clearly has the potential to confer a great benefit on any child concerned. Children need the love of their parents. The years of early childhood are important for children developing warm and intimate relationships with their parents.
The strength in parent/child relationships comes from parent and child being able to know one another at first hand and to have the facility to share memories and common expenses together. In this case, it is clear to me that the actions of Ms Molloy have severely curtailed this potential, so far as [X] and her father are concerned.
The central question in this case is whether, objectively judged, the circumstances confronting Ms Molloy, were such as to justify her extreme and unilateral step in moving [X] away from Adelaide, without any prior reference to Mr Molloy.
Having considered the allegations made by Ms Molloy, particularly given the period of time which has elapsed since the parties separated and the absence of any recent significant episodes of violence, I do not believe that considerations of family violence alone were sufficient to justify the mother’s actions.
It seems to me that Ms Molloy has given little if any thought as to how [X] can maintain some level of relationship with her father. [X] is not yet seven years of age. In my view, it will be difficult for [X] to maintain any form of relationship with her father, let alone a meaningful one, if the interaction between the two is confined to telephone or skype communications only.
The additional considerations
I have no independent or objective assessment of what [X]’s views are in the matter. In any event, given her age, she is too young for her views to be a determining factor, particularly at this interim stage.
It seems likely that Ms Molloy has been [X]’s primary carer, certainly since the parties separated. This is a significant element of the mother’s case. She asserts that if she is fearful and unhappy, if compelled to return to Adelaide, where she feels threatened, this will have implications for her to capacity to properly parent [X].
However, this sense of security and happiness on Ms Molloy’s part, can only be secured if the mother’s unilateral actions are ratified, after the event, and at the price of [X]’s ongoing relationship with her father.
The father is critical of the mother's willingness and ability to encourage the children to have a relationship with him, particularly in the event of the relationship being one characterised by distance.
At first blush there seems some substance to his position, given the flavour of unilaterality, which suffuses the mother's case. However, again, this is an issue, in my view, more amenable to examination at the final rather than the interim stage.
For reasons previously provided, it seems to me likely that [X] also has a significant level of relationship with her father. It also seems likely that, up until fairly recently, [X] also interacted with other relatives on her paternal side.
Given [X]’s age, not yet seven, it is my view that her relationship with her father is liable to suffer from the vicissitudes arising from the two living in separate states. [X]’s paternal relationship is necessarily still in its formative stages and is vulnerable to losing its potential for warmth if the two do not directly interact with one another regularly.
On a prima facie basis, the evidence indicates that Ms Molloy has some deficits in respect of her capacity to support and encourage [X] having some form of relationship with her father. She would say that her actions in moving to Tasmania were justified because of her safety concerns for [X]. At this stage, I am not in a position to fully assess those concerns.
I accept that it will be very inconvenient and expensive for the mother to return [X] to South Australia. She has said, through her counsel,
Ms DuBarry that she would not consider [X] coming into her father’s care so that she (Ms Molloy) could remain living in Tasmania with the two other children.
It is also apparent that Mr Molloy has no financial resources to subsidise the mother’s return to South Australia. The situation currently confronting the court is one which arises in many other cases involving unilateral relocations of children by one parent alone.
Invariably, the parent who has relocated and seeks the court’s post-relocation mandate asserts that it is financially impossible for him or her to return to the place which has been left, although sufficient financial resources were found to finance the relocation in the first place.
In addition, the relocating parent very often asserts that he or she has no funds to finance any form of interaction between the child or children concerned and the other parent. Rather, that parent argues that the parent left behind should travel, at his or her own expense, to the new location, to spend time with the applicable children.
All these features are present in this case. At this juncture, it is difficult to see how Mr Molloy would be able to interact regularly with [X], on a face to face basis, if she remains in Tasmania. Similarly, I accept it will be financially difficult for the mother to return to live in South Australia, pending the final outcome of this matter.
However, against these considerations, I must have regard to [X]’s entitlement to have a meaningful level of relationship with her father. Clearly, the ongoing intimacy and strength of her paternal relationship must have implications for her overall best interests.
At this stage, the mother’s allegations of family violence are inchoate and untested. There are no relevant family violence orders in existence. The father disputes these allegations.
Even if I accept the mother’s case at its highest, I do not think her moving [X] to Tasmania was a proportionate response to the risk of harm involved, either to the mother herself or [X], and the other children concerned.
As such, I do not think it would constitute an unacceptable risk for either [X] or the mother, if [X] returns to live in Adelaide, pending the final hearing.
In these circumstances, at this stage, the benefits of [X] maintaining a meaningful level of relationship with her father must be given greater emphasis at this interim stage.
Given the limited evidence, which is invariably available at the interim stage, the court must exercise considerable caution in respect of a parent unilaterally relocating a child far away from the other parent concerned.
This is particularly so given that, in the absence of specific order, parents share responsibility for making decisions regarding major long term issues to do with their children, one of which is a change in living arrangements which makes it significantly more difficult for the children to spend time with a parent.
Accordingly, the Full Court of the Family Court has indicated that issues relating to relocation should not be determined against a background of recent development which significantly alters the relationship of any child concerned in regards to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.[8]
[8] See C & S (supra)
I agree that, at the interim stage, the court must continue to exercise considerable caution about so-called unilateral relocation. The reasons for this are obvious. Parents should not be encouraged to feel that they can take things into their own hands, and in the heat and emotional disconnection of separation, make decisions which will serve their own ultimate long-term aims, but not necessarily the best interests of any child concerned.
In my view, as far as possible, unless there are significant issues to do with the welfare of a child, issues to do with relocation should be determined, as far as a possible, on a metaphorical level playing field, unaffected by the post separation actions of one parent who has moved.
In Morgan & Miles[9], Boland J confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“It is highly desirable that, except in cases of emergency, the arrangements which will be in the child's best interests should not be determined in an abridged interim hearing and these are the types of cases in which the child's present stability may be extremely relevant on an interim basis. It further appears to me that the comments of Warnick J in C & S remain apt and relevant to determination of these cases.”
[9] See Morgan & Miles [2007] FamCA 1230
At this stage, I do not consider that the mother’s situation in Adelaide was one categorised by such a level of emergency, particularly because of the father’s alleged controlling and domineering attitude towards her, was one which left her no alternative but to leave Adelaide and move interstate.
In my view, the difficult and complicated issues relating to the mother’s wish to live in another state should be the subject of a proper and exhaustive hearing, when all necessary issues can be properly canvassed.
If the court acquiesces in the mother’s relocation, at this stage, it may render the need for a final hearing redundant, and this, of itself, may have significant implications for [X]’s best interests, particularly in terms of the nature of her relationship with her father for the remainder of her childhood.
I acknowledge that the mother has now been resident in Tasmania for a period approaching four months. However, this delay has come about because of the time the mother has required to file her answering material and because of the disempowerment of Mr Molloy in the face of the mother’s actions. I do not think that it can be said that the father has ever acquiesced to [X] going to live in Tasmania.
In addition, I do not find it a compelling argument that it is now impossible for Ms Molloy to return [X] to Adelaide. If I accede to this argument, it will undermine the structure and ethos of the Family Law Act, which is directed towards achieving outcomes in which parents share responsibilities for their children.
Conclusions
This is a difficult case, particularly at the interim stage. I must be careful not to fashion an outcome which is likely to pre-empt the need for a final hearing, which is the appropriate forum at which the parties' competing claims and counterclaims can be properly examined and unravelled.
In my view, a consideration of the various factors arising, under section 60CC, favour the return of [X] to Adelaide pending final hearing. A final hearing is the appropriate forum to analyse the pro’s and con’s of a relocation from [X]’s perspective.
As such, I do not think the determination of the relocation issue, in the mother’s favour, at the interim stage, can be said to be in [X]’s best interests. The issues which each of the parties have raised need a more thorough and nuanced consideration.
However, notwithstanding these matters, as the mother has been [X]’s primary carer up to this stage it is logical that she should continue to provide the majority of her care if it is possible.
Given the troubled and muddled parenting relationship between the parties I do not think it appropriate to apply the presumption of equal shared parental responsibility at this interim stage. Accordingly, I need not consider the issues of equal time or substantial and significant time, and the question of the overall practicality of such outcomes in the circumstances of the case.
At this stage the best outcome for [X] is if she continue to live predominantly with the mother, but in Adelaide as opposed to Tasmania and spends time regularly with her father in his home environment.
My authority applies only in respect of orders pertaining to [X]. I have no direct authority to compel Ms Molloy to live anywhere. She has however indicated, that if it be the court’s order that [X] return to the Adelaide area, she will return with her.
At this stage, I consider that [X]’s best interests dictate that she lives predominantly with the mother, but in Adelaide as opposed to Tasmania. As such, I propose ordering that the mother return [X] to Adelaide by 6 May 2011.
Given the mother’s opposition to this outcome, I will do my best to expedite the final hearing of the matter, which I propose to schedule for 19 September 2011.
Given the serious allegations of family violence, which have been made, I will also order that [X] be independently represented in these proceedings and also order that a family report be prepared to be available in conjunction with the final hearing.
In the event the mother elects to remain living in Adelaide, pending the final hearing, I will order that [X] lives with her but if the mother elects to live in Tasmania, [X] should live with her father, pending the final hearing.
If Ms Molloy does return to Adelaide pending final hearing, I propose that Mr Molloy spend time with her, on alternate weekends from after school on Friday until school commences the following Monday morning and for half of each school holiday period.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 20 April 2011