Mosman and Doolan - [2008] FMCAfam 434

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOSMAN & DOOLAN

[2008] FMCAfam 434

FAMILY LAW – Children aged 3 & 2 – arrangements for care pending final hearing – allegations of family violence in context of unilateral relocation of the children from Adelaide to Canberra – presumption of equal shared parental responsibility – weighing of primary considerations under section 60CC(2) – best interests – assessment of risk to children.

Family Law Act 1975, ss.60CA; 60CC; 61DA; 61DAA; 61DB; 65D; 65DAA

Goode & Goode (2006) FLC 93 286 at 80,903
In the Marriage of Patsalou (1994) 18 Fam LR 426
J.G. & B.G. (1994) 18 Fam LR 255

Applicant:

MR MOSMAN

Respondent:

MS DOOLAN

File number:

ADC 472 of 2008

Judgment of:

Brown FM

Hearing date:

19 March 2008

Date of last submission:

19 March 2008

Delivered at:

Adelaide

Delivered on:

20 March 2008

REPRESENTATION

Counsel for the Applicant:

Mr Eid

Solicitors for the Applicant:

Nicholls Gervasi & Co

Counsel for the Respondent:

Ms N.M. Hurley

Solicitors for the Respondent:

Farrar Gesini & Dunn

ORDERS

The matter is fixed for final hearing before Federal Magistrate Brown on 20 and 21 October 2008 at 10:00am NOTING 2 days allowed.
The applicant pay the hearing fee or obtain a Remission Certificate in respect thereof by no later than 20 September 2008.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 22 September 2008.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 6 October 2008.
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children Z born in 2004 and A born in 2005 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 mother return the children to the metropolitan area of Adelaide by 6:00pm on 4 April 2008 provided the father forwards to her the sum of $2,000.00 by 28 March 2008.
In the event the mother elects to live in Adelaide the children live with the mother and spend time with the father each weekend commencing 5 April 2008 from 9:00am Saturday until 5:30pm the following Sunday or Monday in the event that Monday is a public holiday.
The place of any exchange of the children is to be agreed between the parties and failing agreement to be at the nearest Commonwealth funded Contact Centre or nearest Police Station to the mother’s address.
In the event the mother elects not to live in Adelaide the children live with the father and spend time with the mother at times to be agreed between the parties.
Each party be restrained and in injunction issue restraining each of them from using any illicit drugs whilst the children are in their respective care or 24 hours before.
Each party shall be entitled to require the other to undergo random drug testing on the following terms and conditions:
(a)the party shall provide urine samples in the presence of and within sight of the medical practitioner or medical technician who is responsible for submitting the sample for analysis;
(b)the party’s solicitor forward a written request to the party or his/her legal representative with no more than five tests to be conducted prior to the trial;
(c)the party submits to the said tests within 24 hours of the other party’s lawyer’s receipt of the said written request; and
(d)the party forward a copy of the results of such tests to the other party’s lawyer as soon as they become available; and
(e)each party bear the costs of each such test.
Each party is at liberty to re-list the matter following the appointment of the Independent Children’s Lawyer.
Each party be at liberty to telephone the children when in the care of the other party on a regular basis and failing agreement to be in the father’s case at 5:00pm every other day and 5:00pm each Saturday when the children are in the father’s care.
A copy of the reasons for judgment be transcribed and provided to all parties, including the Independent Children’s Lawyer.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 472 of 2008

MR MOSMAN

Applicant

And

MS DOOLAN

Respondent

REASONS FOR JUDGMENT

Introduction

This afternoon, I have to deliver reasons for judgment in the matter of Mosman & Doolan. The reasons are being delivered orally, following an interim hearing. I commenced the hearing at around 4.45pm yesterday afternoon. From memory, the hearing concluded sometime after 6.00 pm. It was not possible for me to deliver the reasons yesterday, given the complexity of the matter and the lateness of the hour. Unfortunately there has not been time for these reasons to be put into a printed form.
It will take me some time to deliver the reasons for judgment, as it will take me some time for me to set out the relevant legal principles, which I have to apply. The law is complicated and I have responsibilities to the parties to explain it as best I can and the reasons why I have reached the particular conclusions that I have.
I regret the burden I will create for the parties by delivering these somewhat lengthy reasons for judgment. At a later stage they will be transcribed and each of the parties will have an opportunity to read them in more detail. For that reason I reserve the right to correct any errors of expression or grammar which may occur as I deliver these orally delivered reasons for judgment.
Mr Mosman and Ms Doolan are the parents of Z, born in 2004; and A, born in 2005. Mr Mosman is 39, Ms Doolan is 32. Ms Doolan has another child from an earlier relationship, he is J, born in 1992. J is living with some people in Adelaide. I have not been told what their exact relationship is to either the parties themselves or to J.
The parties have never been married. The father says they began to live together in 2002; the mother, that it was in 2001. The parties separated in 2002 before again resuming their relationship. There is, however, no dispute that they finally separated, in difficult circumstances, on 25 January 2008. The police were involved with the parties at the time of their separation.
Shortly after this date, the mother left the parties' former family home in suburban Adelaide with Z and A and went to live in the Australian Capital Territory. She went to live with her mother. She wishes to remain living in Canberra with the two children concerned.
The father commenced these proceedings on 7 February 2008. He wishes the children to live with him in the Adelaide area. In his application, he proposes that the mother undergo a psychiatric examination before the court gives any consideration to the mother spending any time with the children concerned. He also seeks orders that each party undergo random drug screen testing.
The mother responded to this application on 28 February 2008. In addition to her wish to live in the ACT, with the children, she proposes orders that would see the father spending only supervised time with the children for at least the next 12 months.
Accordingly, it is clear the positions of the parties are polarised in the extreme. Each has filed lengthy affidavit material. In addition the mother has subpoenaed numerous records. The proceedings were hard-fought. Out of the morass of competing allegations one thing appears clear, the mother did not have the father's agreement to move Z and A to Canberra. She did so secretly and unilaterally.
It is the father's position that the mother's actions have deprived him of the opportunity to have a proper and meaningful relationship with Z and A, and as such cannot be justified. It is his evidence that the mother is an emotionally volatile person, who has behaved in a violent way towards him and to Z. He concedes that both he and the mother have used marijuana and amphetamines in the past. The father also categorises J as a child with serious behavioural problems which have resulted in him exhibiting violent behaviours at times.
The father earns $54,000 per annum. He continues to live in the former family home. At the moment the mother is receiving a Centrelink payment. Her mother has assisted her financially. In the past she worked, on a part-time basis. Both children have experience of child care. It is the mother's position that she has provided substantially more of the children's care in the period prior to the parties' separation.
More importantly, in the context of this case, it is the mother's position that she had no alternative but to leave Adelaide, with the children, when she did. It is her evidence that she was fleeing a violent and abusive relationship and went to the location where she felt she would be the most safe and secure and where she would be looked after by those whom she holds most dear. It is also her position that she is able to receive appropriate counselling to alleviate the sequelae of exposure to domestic violence.
Accordingly, it is the mother's position that the father has serious issues to do with his use of the drug methamphetamine, commonly called ice, and his drug use renders him unstable and unpredictable. As a result, she details numerous incidents of violence against her and J.
It is her position that Families SA have been involved with the family in the past, due to notifications of abusive behaviour which they have received. It is the mother's position that the father has issues to do with controlling his anger and has no insight whatever into his behaviour and its consequences for others, particularly her and the children.
In such circumstances, she asserts that it cannot be said to be in the children's best interests for the court to effectively compel her to return them to Adelaide and potentially into the care of an abusive parent. Rather, she asserts, as the children are now well settled in Canberra, this is where they should remain. She concedes some slight illicit drug use on here part, but she says that it occurred with the father's complicity and encouragement.
Essentially, the father denies the gravamen of these allegations. He says that, if he has behaved inappropriately in the past, it has been in response to either the mother or J's extreme behaviour.
It is against this conflicted background that the court must make interim orders for the care of Z and A. These orders will remain in place until the second half of 2008, which is when the parties' final applications are likely to be heard.
Numerous compendious affidavits have been filed by each of the parties. The father relies on the following:
·two affidavits of himself filed on 7 February and 19 March 2008.
Attached to this latter affidavit is a report from Mr L, whose firm supervised some time between the father and the children, in Canberra on 15 and 16 March 2008.
The mother relies on the following affidavits:
·two affidavits of herself filed on 28 February and 19 March 2008;
·an affidavit of her mother Ms W, filed 28 February 2008;
·an affidavit of her grandmother Ms P, filed 29 February 2008;
·and an affidavit of her counsellor, Ms B, filed 19 March 2008.
Documents from the Australian Federal Police, the South Australian police, and Families SA have been subpoenaed and tendered into evidence.

Legal principles applicable

It is now necessary for me to outline, as best I can, the legal principles which I have to apply in this case. The service of Z and A's best interests is the most important consideration in this case [Family Law Act section 60CA]. The same principles apply at both the interim and the final stage. The distinction being that interim hearings do not determine long term arrangements for the care of a child, whereas final proceedings do.
It is frequently the case that the court is called upon to make interim determinations, against a background of urgency, in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child or children's best interests. So it is in this case.
The aims and principles of the part of the Family Law Act [section 60B], which deals with children, emphasise the desirability of a child's parents being as closely involved as possible in their child's life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical of psychological harm from being subjected to abuse, neglect or family violence.
Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA]. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child's parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate 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.
However, the court must not utilise this discretion in an arbitrary fashion, rather it is to be applied at the interim stage in cases where the limited evidence available to the court necessarily makes it problematic to either apply or rebut the presumption [see Goode & Goode (2006) FLC 93 286 at 80,903].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child's best interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)]. It should also be noted that, if the presumption is applied at the interim stage, it must be specifically disregarded by the court at the final stage, when a more exhaustive hearing is possible [section 61DB].
The presumption itself does not determine the extent of time that the child concerned spends with each of his or her parents. This is determined by section 65DAA. If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time, and if this is considered to be neither in the child's best interests nor reasonably practical, the court is then required secondly to consider the child living with each of his or her parents for substantial and significant periods of time.
The Family Law legislation emphasises the importance of parents being actively involved in their children's lives: in their schooling, sporting activities and recreation, and their daily routine, as well as special occasions, so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria: firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned; and secondly, the arrangements are likely to be reasonably practicable to put into operation.
In considering the children's best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider, primary considerations and additional considerations.
There are two primary considerations: firstly the need to ensure that children have a meaningful relationship with both their parents; and secondly, the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [see section 60CC(3)]. Again, their application must depend on the particular circumstance of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
The Full Court has directed that it is necessary for the court to consider all of the section 60CC factors applicable and, if possible, make findings about them. This may be difficult in the context of an interim hearing [see Goode & Goode at 80,903].
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties' homes; the parties' current and future capacities to implement shared care-type arrangements; the parties' ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.
If the court determines that the presumption of equal shared parental responsibility does not apply, for any of the reasons specified in section 61DA, the court is still directed to consider the various matters in section 60CC to arrive at the outcome it considers is likely to best serve the interests of the children concerned.
Finally, it should be noted that pursuant to section 65D the court is empowered to make whatever parenting order it thinks proper subject to the presumption of equal shared parental responsibility created by section 61DA.
However, clearly this discretion is not uncontrolled and must be exercised in the light of the entire legislative structure of Part VII of the Act, which is the part of the act dealing with children.
In this case it seems to be the father's position that the presumption should be applied and that the court should give consideration to Z and A living for either equal periods of time, or substantial and significant periods of time with the parties. Necessarily, this must involve, in some way, the children returning to the Adelaide area.
However, on the other hand it is the mother's position that the presumption is rebutted because of the serious allegations of family violence which have arisen. Failing that, it would appear to be her position that it is not appropriate for the presumption to be applied in this case.
Accordingly, if the presumption falls away, it is her position that a consideration of the relevant section 60CC factors and the findings of fact, which can be made at this stage, favour the children remaining in her care in the ACT.
Some comments about family violence. Considerations of family violence are often central to the court's task at both the interim and final stage. As I say, the court is directed to consider two matters above all: the desirability of the children concerned having a meaningful relationship with both their parents; and the need to protect them from harm, including the harm represented by family violence.
Both these matters are categorised by the legislation as primary considerations. One cannot be said to be more important than the other in a general way. The importance of these considerations must depend on the circumstances of each particular case.

However, allegations of family violence must be closely examined by the court, bearing in mind the serious consequences exposure to family violence may have for the children concerned. Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child's parents are not appropriate psychological role models for children [see: In the Marriage of Patsalou (1994) 18 Fam LR 426].
Allegations of family violence are easy to make and can be difficult to refute, particularly at the interim stage. This is because family violence more often than not arises within the private confines of the 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 an evil so far as children are concerned.
However, family violence is not homogeneous in its qualities. It 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 [see J.G. & B.G. (1994) 18 Fam LR 255 at 261]. Obviously the latter behaviour is the more damaging so far as children are concerned.
Again, these are factors which the court must bear in mind in examining issues of family violence, in the context of determining the best outcome for the child concerned. Not all instances of family violence will be necessarily damaging to a child. The fundamental task for the court is to assess prospective dangers for the children concerned, arising from the possibility of further exposure to family violence, rather than to punish a parent for past failings; particularly if that failing arose against a background of difficult circumstances, or indeed as a result of provocation or incitement.
Finally, the definition of family violence in the Family Law Act has an objective level. The fear or apprehension occasioned by the behaviour complained of must be reasonable [see section 4]. It is not unknown for parties, in acrimonious proceedings such as these, to exaggerate unfortunate incidents, which have previously occurred either unintentionally or for tactical reasons.

The evidence

I turn to consider the evidence in more detail. In this case the father places particular emphasis on Z and A maintaining a meaningful relationship with him, which he asserts may be irretrievably damaged, if they remain living in Canberra. He is fearful that, given their tender years, they have the potential to forget him between infrequent visits.
He is apprehensive that his parental relationship, with the children concerned, will lose its freshness and spontaneity, if he is only able to see the children infrequently, far away from where he lives; and if those visits occur subject to supervision. From his point of view these years of early childhood, for Z and A, are precious in terms of him forming a relationship with the two children and the children maintaining that warm and spontaneous relationship with him for the remainder of his and their lives.
Clearly the mother places more emphasis on issues to do with family violence, as being more central to the service of the children's best interests in this case. The mother's claims of violence are detailed and cover incidents from 2002 onwards. Essentially the father denies being violent.
The first such incident of violence of which the mother complains occurred in 2002. The father deposes that the mother behaved in a volatile and violent fashion towards him and that he was defending himself at this time. At this juncture it is difficult, if not impossible, for me to resolve definitively who of the parties is telling the truth, or indeed whether both are likely to be incorrect about what occurred between them in the past. It is, however, clear that there was an unpleasant and unwarranted episode of violence between the parties, at this time.
The father acknowledges hitting J once, with a beach bat, around about the time of the parties' early relationship. He categorises it as an exercise of discipline, which J required at the time. He deposes that this was how he himself had been disciplined in the past. It is his case that he regrets the incident and now has a greater insight into the use of physical discipline for children.
Another significant aspect of the mother's case is that she alleges that the father uses methamphetamine or ice, which I think is well known to be a particularly powerful drug in terms of its effect on psyche. The father denies ever having used ice.
He has provided three drug screen tests, which are clear of amphetamines, although the first is positive to cannabis. The father acknowledges use of cannabis in the past but asserts that his use of cannabis has tapered to nil and he now has no need of any illegal drugs.
The mother is suspicious about the tests and points to the fact that they were not supervised tests and could potentially be subject to manipulation. As I say, the mother also acknowledges some use of drugs in the past. Again, it is difficult for me to resolve the issue to do with both parties' use of drugs at this stage. However, at this point, there is no compelling evidence to indicate that either party is currently using drugs. Whether this situation will remain so in future is something that is unclear to me.
Ms W does not give any evidence of ever having directly observed the father behave violently towards either the mother or J. As is to be expected, she is strongly supportive of her daughter. Much of her affidavit contains material she has heard or been told by others. Much of it is hearsay.
As such it does not greatly assist me, if at all, I think, to resolve the central issues in this case which deal with the nature of the parties' violent relationship with one another, and whether one or other of them can be categorised as the main protagonist in the perpetration of violence on the other.
Ms P similarly has no direct knowledge of the father's violent behaviour. She did, however, acknowledge that J can be difficult to deal with. It is her position that J is fearful of the father and by implication, she asserts this is evidence of J having been mistreated by the father in the past.
Ms B has a certificate in counselling. Indeed, she has been a counsellor for some 17 years. She has experience of counselling those who have been victims of domestic violence. She has seen the mother seven times. The mother describes to Ms B that she suffered flashbacks, disturbed sleep, anxiety, and an inability to concentrate, as well as loss of appetite. It is Ms B's view that these are indications that the mother has been involved in a violent relationship. The mother gave details to Ms B of being in such a relationship with the father. However, in my view it remains difficult for me to form a concluded view regarding whether the father was indeed violent towards the mother because of what she has described to the counsellor concerned.
On the day of the hearing, shortly prior to the commencement of the hearing, I was provided with a lengthy affidavit, which has attached to it very many documents which have been subpoenaed from a variety of sources.
The documentary evidence is disturbing. It is difficult to form a coherent picture from the documents. The records are in institutional jargon intended for internal bureaucratic use only. The mother has put her own slant on the documents, as does the father. Obviously the documents were not intended for use in these particular proceedings.
The mother's view of the father is that he is a violent person who has no insight into his violent behaviour and its consequences for others. In this regard she points to his criminal record. The father does indeed have a criminal record. Most recently he was convicted of obstructing a Commonwealth public official.
This seems to relate to an incident at an airport when the father was leaving an aeroplane. He was, I think, initially charged with some offences involving resisting police and criminal damage. It seems he had been drinking on an aeroplane. These matters seem to have resulted in the imposition of a fine.
The other offences the father has, the most recent of which is in 1996, do not of themselves involve crimes of violence. There are driving offences including an offence of drink driving, and there are offences relating to the production and possession of cannabis, which have resulted in fines. It does not seem to be the case that the father has ever received a direct sentence of imprisonment.
It is the mother's case that the father has been particularly violent towards J, and his behaviour in respect of J can be taken as an indication as to how he may behave in respect of Z and A, if they behave in any way which causes the father stress or is perceived by him as a challenge to his authority.
The father, for his part, has produced a wide range of documents in regards to J. From 2001 onwards, J has been noted to have behavioural outbursts and to indulge in violent and rude behaviour. It is clear that, regrettably, J has been suspended from a number of schools and has also been asked to leave schools. As I say, it is the father’s that, if his behaviour towards J is open to challenge in any way, consideration must also be given to J’s behaviour at the times in question.
At this point it is not possible for me to ascertain the reasons why J behaves in the way he does. However, I think I can reach the conclusion that J's behaviour represents a challenge to the many people who have been involved with him in the past. Indeed, the mother's grandmother acknowledges this.
Police records indicate that they were called to the parties' former home in April of 2007 by J himself. The record indicates that no‑one was charged with any particular offence. J had apparently been suspended from school recently and been grounded for his behaviour, which had precipitated some sort of crisis at his home and an altercation ensued. The police report that there was some altercation had between J and his mother and that Mr Mosman was outside.
The note records that Mr Mosman grabbed J and pulled him backwards outside to calm him down. Whilst resisting Mr Mosman, J apparently fell over and sustained a minor knock on his lower lip. As I say, no persons were charged. The mother asserts her recollection of the incident was that the father was the aggressor in the incident. From the independent record, it is my view, that it is impossible to determine who was the instigator of the violence of which the mother now complains.
A number of documents have been subpoenaed from Families SA. Most concerning are those which relate to an incident on 25 June 2007, which involved a video camera. The mother was found to have abrasions to her right hand and a bruise to her face. However, in the records concerned, she denied any allegations of assault, as did the father. The worker concerned was unsure if the children knew about the incident.
A month later, in July of 2007, the mother reported to an officer that there had been incidents of physical violence in the parties' relationship with one another. She further said these were not many, but there were elements of control and aggressiveness, swearing and yelling from the father, characterises the parties' relationship with one another. She said that both parties had grown up with family violence and she did not want it replicated in her relationship with the father and have the children witness it. The father apparently reported that he did not see anything wrong with his behaviour.
What is noteworthy is that a few days after this matter came to the notice of the authorities, one of the department's social workers spoke to child care workers at the child care centre the children attended. The child care workers said that they had no concerns about A or Z, who presented well at child care.
Mr Mosman was reported as relating well to staff and the two children concerned, and he was described as an attentive and good father. Nothing of note was noted in the children's behaviour. I accept that that does not necessarily mean that there was not untoward and unsatisfactory behaviour going on in the children's home.
In March of 2005, other matters came to the department's attention. The mother reported that she intended to leave the father, against a background of domestic violence. She complained that the father had been drinking all the previous night and she was frightened of him. She also reported that, three or four weeks earlier, the father had punched J in the face. The complaint being that the father had deliberately sought out J and punched him. The assessment that was made by the workers concerned was that there was abuse confirmed in respect of J by Mr Mosman and concerns were raised regarding chronic issues to do with domestic violence. However, notwithstanding those assessments, the matter was not investigated, apparently due to insufficient resources.
In September of 2003 a notification was received about J involving J engaging in self-harm at school. This involved an attempt by J to injure himself with a knife; an attempt to drown himself in a wading pond; and to slash himself with broken glass. J's behaviour was apparently so extreme that the police were called. One of the precipitating factors for this behaviour was apparently J's fear that he would get into trouble, when he went home, from his stepfather.
The assessment at that stage was that J's indications of suicidal behaviour and fears of being punished by his stepfather were highly concerning. However, it was noted that there had been no direct allegations made against Mr Mosman and that department officers had previously been involved because of J's extreme behavioural issues.

J was apparently going to see a mental health worker at CAMHS in the close future.
Other matters involving J in 2003 appear in the record. Particularly that J had been imprisoned in his room and made to use a bucket for his sanitary needs. The mother was also the subject of a notification, when it was reported that she had struck J five times on his hand with a wooden spoon.
It is not my function to make any orders in respect of J. The relevance of J is, on the mother's case, that the father has shown himself to be an inappropriate person to be a custodian for J, and by implication, she says that it must follow that he is also likely to be an unsuitable custodian for Z and A. What I think is notable about the record is that there are no specific incidents involving the perpetration of violence on either Z or A.
The father's application first came before the court on 3 March 2008. At that time the mother sought an adjournment to file more material and the proceedings were adjourned until 19 March. However, in the interim, it was agreed that Mr Mosman could spend time with the two children in Canberra on 15 and 16 March, provided that his time with the children was supervised by the coordinator of an organisation called [X]. This supervised time took place and I have, as I have already indicated, a report from Mr L, which is attached to

Mr Mosman's most recent affidavit.
The report from the worker concerned is detailed. On 15 March Z and A appeared to be very happy - and "very" is underlined - to be spending time with their father. They were described as smiling, giggling and laughing with him. Z stated that she was so excited about the gifts her father had given her. It seems clear that the visit went well, and, when the time came for it to end, Z was upset at the prospect of leaving her father and clung to him tightly.
The next visit which took place the next day, 16 March, also seems to have gone well. The two children are reported to have been very happy to be spending time with their father. Again they smiled, giggled and laughed with him. They looked at animals at the zoo and aquarium.
The observer who undertook the supervision was of the view that the father interacted physically, verbally and at play with the children in an appropriate way and that there was no evidence that Mr Mosman was under the influence of any intoxicating or psychotropic substance.
As one might imagine, the worker observed that there was some stiffness between the father and the children, which is probably understandable given the somewhat unusual or stilted circumstances of the interaction in which the father and they took part.
I was impressed with the report from [X]. It seems to me that both children have the potential to have a meaningful relationship with their father. It also seems to me clear, regardless of the dispute between the parties regarding who of them was the children's main provider of care to the two children concerned, that the father has been a constant presence in the lives of the two children concerned, in the past.
It is difficult for me to assess the parenting capacities of each of the parties concerned. However, the observer of the father and the children in Canberra was not concerned at any of the father's responses to these two young children. To a certain extent both parties can be criticised for their past use of illegal drugs.
The ages of these children are relevant in this matter. Given their ages, their relationship with each of their parents is still being formed. As such, lengthy periods of time away from one or other of their parents is likely to impact upon the future quality of that relationship.
This must have some impact upon the children's ability to maintain a meaningful relationship with one or other of their parents, if the current situation continues, or any time the father has with the children is subject to supervision.
Supervision will undoubtedly protect the children from being exposed to harm or abuse, but such supervision of itself may pose a threat to the wellbeing of the children. Necessarily, a requirement for professional supervision will reduce the amount of time the father will be able to spend with the children.
Supervision of the type offered by Mr L is expensive. The environment of a professionally run contact centre may be stilted and appear institutionalised. These are factors which may also, of themselves, lead to the deterioration of a child's parental relationships.
At this stage, and indeed at the final stage, the court must balance the risk involved in a child spending time with a parent with the equal risk that to unduly restrict time or place too onerous conditions on the time a parent spends with the child may, of itself, have adverse consequences for the children involved in terms of the reduction or possible extinction of a parental relationship. Certainly a supervised setting is not the most conducive environment in which to develop parental relationships. It cannot be said to be a natural environment, nor one which lends itself to spontaneity in activities or displays of affection or natural behaviour.
Most importantly, it is not an environment which will allow a parent to be involved in a child's routine. There will be no opportunity to tuck a child into bed or cut a sandwich or do anything of that nature. In my view these are the types of mundane activities, which are important and give meaning to parental relationships.
I must assess the risk the father poses to these children and make orders commensurate with the degree of risk, whilst at the same time giving consideration to the means through which the children may maintain meaningful relationships. It is difficult to assess risk at the interim stage.

In this regard I note there are no direct allegations of abuse to Z or A. Further, there is no evidence of adverse psychological behaviour being exhibited by either child. The abuse allegations regarding J are the subject of conflict between the parties. In any event J's behaviour has been problematic and led to his expulsion from school, and in leaving both the parties' home and the mother's home more recently, although she says that he prefers to live in the Adelaide area.
Undoubtedly the parties' relationship with one another, in the past, has been turbulent. It seems unlikely that they will come into direct contact with one another from now on and their future interactions with one another will be monitored. In such circumstances the possibility of further episodes of domestic violence between the parties appears to me to be much reduced. In addition, I should not lose sight of one essential detail: the father denies this behaviour and asserts that the mother was violent towards him. At this stage of the proceedings I cannot resolve this fundamental issue.
In all these circumstances I have come to the view that, at this stage in terms of the primary considerations there should be more emphasis, in the orders made, on the children concerned maintaining a meaningful relationship with their father, rather than on them being protected from exposure to direct harm, in the form of the family violence or the risk of it.
The mother wants to live away from the father in Canberra. Necessarily, if the father remains living in Adelaide and the children remain living in Canberra, this has implications for the children's level of relationship with their father.
What are commonly called relocation cases create significant difficulties for the court, as such cases often require the court to consider competing principles which are difficult to reconcile.
On the one hand it is the right of a person to live how and where he or she choses, separate from the other spouse concerned, at the end of the marriage or significant relationship between them; on the other hand, it is the entitlement of the parties' children to have a meaningful relationship with both their parents regardless of that separation. As a result of those matters, the High Court has determined that relocation cases require a close consideration and a delicate analysis of the various issues involved.
The Full Court of the Family Court in the case of Campbell & Spalding, which was delivered on 15 May 1998 and is, as far as I know, unreported, said as follows:
In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as relocation, being determined by a court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child, with regard to one of its parents from what it or they had been immediately beforehand.
The judgment of the Full Court, which consisted of their honours, Ellis, Lindenmayer and Warnick JJ, was delivered by Warnick J.
What his Honour seems to have been saying, in the passage, is that a parent cannot set up a change of circumstances, in a relocation case, vis-à-vis the other parent and then have the advantage of using that as the background against which the court ultimately at final hearing, will be evaluating the competing proposals of the parties as to how the best interests of the children will be served. Rather, the parties' proposal should be judged against the background of longstanding arrangements for the care of the children concerned.
Otherwise, to use the jargon, that would not be a level playing field and may, in certain circumstances, pre-empt the need for a final hearing at all. It is essentially the father's position that, if the court allows the mother and the children to continue to live in Canberra, there will be no point in having a final hearing and any prospect of him having a meaningful relationship with the children will be lost unless he immediately relocates himself to the ACT.
The first matter I must consider is the application of the presumption, which arises from section 61DA. In this case I have come to the view that the presumption should not be applied. I think there are reasonable grounds for me to believe that either one or other or both of the parties has engaged in family violence. How can it be otherwise, given the involvement of the police and the fact that both parties allege the violence has occurred?
In addition, I am satisfied that, given the extreme polarity of the parties' positions, that it would not be appropriate, in the circumstances of this case, for the presumption to be applied. Accordingly, I must turn to some consideration of the relevant section 60CC factors and reach a conclusion as to the orders which I think will best serve the interests of the children concerned at this stage.
For the reasons I have already provided, I have come to the view that the need for the children to have a meaningful relationship with their father should be given significant weight in the court's consideration at this stage. I am satisfied that both children have a significant relationship with each of their parents. I am concerned that to allow the mother and the children to remain living in the ACT is likely to have significant implications for the children's ability to have a relationship with their father.
It is not possible for me to compel the mother to return to live in Adelaide, if she does not wish to do so. However, I apprehend that she would find it intolerable to live away from the two children concerned. If I determine the children are to live in Adelaide, she will return to this city. With this in mind, I am minded to fix the matter for final hearing. The difficult issues of relocation of the children away from one or other of their parents will be determined at that hearing.
Given the ages of the children concerned there are considerable practical difficulties in terms of contact arrangements, whatever is the outcome, although the distance between Canberra and Adelaide is not a huge distance when one imagines the size of the continent of Australia.
I am concerned about the willingness of each of the parents to facilitate and encourage a close relationship with the other parent. It seems to me that although I cannot resolve definitively the issues of family violence in this case, that the parties' relationship with one another is not a suitable one for children of this age. However, on balance, and bearing in mind what the Full Court said in Campbell & Spalding, I have come to the view that the children should be returned to Adelaide.
Although it may be understandable why the mother would chose to go to those she holds most dear, in the circumstances of the parties' separation, she at that stage gave little thought to the entitlement of these children to maintain a relationship with their father.
In this case both parties assert that the other is an inappropriate custodian for these children. The mother wishes to live with the children away from the father. Those are sufficient grounds in my view for the appointment of an independent children's lawyer, and I will make an order to that effect.
I will also deal with the possible consequences of the mother's decision potentially to remain living in Canberra as she is entitled to do. If that is her wish, I will make an order for the two children to live in Adelaide, but I do not apprehend that this will be the position. The father has acted on the basis that he will provide some assistance to the mother to return to South Australia. He has offered a holiday home that the parties have at [X] in South Australia. I anticipated that this would not be amenable to the mother. Recently it has been proposed that if I make the order which I have made that she would consider moving back into the parties' home.
At this stage, given the difficult relationship between the parties, I do not think, regardless of the application of the presumption, that the children can live with each of their parents on an equal basis. Nor do I think that it is practicable or likely to be in the children's best interests for the children to live predominantly with one or other of their parents and spend substantial and significant time with the other. The parties' relationship is too difficult, the allegations are too extreme for this.
I have to decide, if the mother decides to live in Adelaide, which I think she will, who of the parties the children should live predominantly with. I think it should be the mother, given the father works on a full‑time basis and the mother is not currently working. It also seems more likely than not that the mother has been the primary carer of these two children. However, at this stage I do not think there is a need, in terms of the children's best interests, for there to be the rigid supervision of the father’s time with the children, which the mother seeks.
For the reasons provided I do not think that such an arrangement is likely to facilitate the children having a meaningful relationship with their father. I do not know at this juncture precisely if the mother will return to live in Adelaide and if so, where she will live.
The mother made the decision to leave Adelaide quickly. I suspect she may have realised that the father would not be accepting of that. Unfortunately, precipitate decisions often lead to unsatisfactory outcomes, but I will give the mother some time to return the children to Adelaide and will keep the father to his word of providing financial assistance to the mother to enable the children to return.
If the mother returns to live in Adelaide, it is my view, that the children should spend time with their father on each weekend. I propose allowing the parties to relist the matter when the independent children's lawyer has been appointed, but at this stage I think I ought to set the parties' competing applications for final hearing.
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 sixteen (116) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: J Willliams

Date: 20 March 2008