NOEL & NOEL

[2020] FamCA 699

FAMILY COURT OF AUSTRALIA

NOEL & NOEL [2020] FamCA 699

FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Relocation – Interim – Where final orders were made by consent for the children to live with the mother and spend time with the father – Where the father is on deployment in Country C – Where the eldest child has recently been in the father’s primary care – Where the father seeks the eldest child remain in his care – Where the mother is concerned about the child living in Country C – Where the child has expressed a strong desire to live with the father in Country C – Where siblings are separated – Consideration of best interests of the child – Consideration of the child’s wishes – Orders.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Marvel & Marvel [2010] FamCAFC 101
Sayer & Radcliffe and Anor [2012] FamCAFC 209

APPLICANT: Mr Noel

RESPONDENT: Ms Noel

FILE NUMBER: SYC 3094 of 2013

DATE DELIVERED: 25 August 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 20 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Farmer

SOLICITOR FOR THE APPLICANT: Withnalls Lawyers

COUNSEL FOR THE RESPONDENT: Ms Ross

SOLICITOR FOR THE RESPONDENT: Aboriginal Legal Rights Movement

it is ordered until further order:

1. That Y born … 2006 live with the father.

2. That X born … 2009 live with the mother.

3. That the father shall facilitate Y communicating with the mother and for the purpose of communication the father shall provide Y with a mobile telephone and ensure that the said phone has credit on it at all times.

4. That the mother shall facilitate X communicating with the father and for the purpose of communication the mother shall provide X with a mobile telephone and ensure that the said phone has credit on it at all times.

5. That the parties shall advise each other of any medical or other emergency involving either of the children whilst in their respective care.

6. That the parties shall do all things necessary and give all such permission and authority as may be required to enable Y to leave the Commonwealth of Australia and travel to Country C on 26 August 2020.

7. That in the absence of consent of the parties, the father shall have sole parental responsibility for the child Y in terms of any travel arrangements to facilitate the child’s travel to Country C. 

8. That the father do keep the mother informed at all times of the residential address, contact telephone number and email address for Y.

9. That the father shall use his best endeavours to facilitate any wish as may be expressed by Y to speak to a counsellor or engage in a therapeutic process, and in particular shall forthwith advise the mother of any wish expressed by Y to return to Australia and to the care of the mother in Adelaide.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Noel & Noel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE  

FILE NUMBER: SYC3094 of 2013

Mr Noel

Applicant

And

Ms Noel

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Noel (“the father”) and Ms Noel (“the mother”) are the parents of Y born in 2006 and X born in 2009 (collectively “the children”).

2. By consent order made 19 October 2015 the parties agreed that the children would live with the mother and spend time with the father as agreed between them but in default of agreement for one half of all school holiday periods. 

3. The orders were predicated upon the father being a member of the Australian Defence Force and were designed to cater for the uncertainty of where the father may be posted as part of his duties.

4. The mother and the children lived in Adelaide and if the father was posted to Adelaide then the children would spend time with the father each alternate weekend, for three hours every Wednesday and one half of school holidays.

5. By Initiating Application filed 24 January 2020 the father seeks a discharge of the orders that provide for the children to live with the mother and instead seeks that the children live with him and spend time with the mother generally to occur during the term two and term four school holidays. 

6. By Response to Initiating Application filed 16 March 2020, the mother opposes the final orders sought by the father and seeks that the children’s time with the father be subject to the further following conditions:

   a)         The children’s wishes;

   b)If the father resides in a non-Hague Convention country such time take place in Australia; and

   c)That X not be required to undertake air travel to spend time with the father.

7. In March 2019 the father alleges that he received a telephone call from Y telling him that she and the mother had argued and that it was no longer tenable for her to reside in the mother’s home. 

8. Notwithstanding the child’s initial advice to the father, matters in the mother’s home appeared to settle. 

9. Whilst there is no clear agreement as to the impact on Y, it appears that she may well have been distressed and anxious to the point where it is asserted that Y may well have engaged in self-harming behaviour. 

10. Following a period of time in the father’s care, it became apparent to the parties, albeit over the objection of the mother, that Y would remain in the father’s care.  X was returned to the mother and there now persists the unfortunate circumstances of the siblings being separated. 

11. In 2012 the father met Ms B  and following a relationship of about five years, Ms B and the father married in 2018.  There are two children of that relationship now aged six and four. 

12. Of recent date the father and Ms B have separated.  The father has operational obligations that require him to remain in Country C.  It is intended that he would return to Australia in 2022. 

13. Following the father’s deployment Y remained in G City.  At the time it was not an option for Y to live in Country C.  That restriction was removed and on 2 August 2020 the father spoke with Y giving her an option of returning to live with him in Country C, remaining in G City in the care of Ms B or returning to the mother’s care in Adelaide.

14. The Court considers that in circumstances where the father and Ms B have separated, it is not an option that Y remain in G City.

15. The options that remain are for Y to return to live with the father in Country C or return to the mother’s home in Adelaide. 

16. The father has put in place the necessary travel arrangements for Y to leave Australia on 26 August 2020.  Y’s travel to Country C is opposed by the mother who considers that notwithstanding any view or wish that may be expressed by Y, her best interests would be served by her returning to the mother’s care. 

17. It seems that when the opportunity arose for Y to return to the mother’s care, she refused to do so. 

18. To a limited extent, the mother accepts that Y expresses a wish to remain in the father’s care, even if that means residing in Country C but the mother contends that the Court needs to bring to account not just Y’s wishes, but the circumstances of the child residing in Country C in terms of suitable accommodation, education and a general concern for the child’s physical safety. 

Notice of child abuse, family violence or risk of family violence

1. The mother filed a Notice of Risk on 16 March 2020 setting out the basis upon which she considers Y would be at risk of if she returned to the father’s care in Country C:

   1.Y is a vulnerable early teenager diagnosed by her GP Dr D as suffering from anxiety due to bullying

   2.She was unsuccessful in being admitted to the new school of her choice in Adelaide and has chosen to remain in Country C with her father rather than return to Adelaide with her sister

   3.She appears to be given a large amount of freedom by her father and is consuming alcohol and staying overnight at a boyfriend’s home

   4.She is too young to be given such extensive freedoms, particularly given her recent psychological fragility

   5.The father has not advised the mother whether Y is receiving counselling support;

   6.Country C is a poor country with a great deal of violence and social unrest

   7.There is poor access to health services (Y’s sister X was bitten by an animal and flown to G City for medical treatment for rabies as there was no adequate treatment in Country C) and current fears re citizens returning with Coronavirus and inadequate quarantine facilities all of which may impact Y’s mental health

   8.The father has informed the children that they are not Aboriginal and thus endangered their cultural safety and identity

2. By his Notice of Risk filed 24 January 2020 the father asserts that if Y is required to return to the mother’s primary care she will again engage in self-harming behaviour.  The father also highlights that there appears to be a high level of conflict between Y and the mother resulting in verbal abuse and poor communication.  In any event, the father doubts that he could make Y return to the mother’s care.

3. The father does not accept that there are attendant risks to Y in residing with him in Country C.  He considers that the child is familiar with the F School and that the accommodation provided for the father is in a secure compound. 

Interim parenting

1. In Marvel & Marvel [2010] FamCAFC 101 at [120] the Full Court considered the approach to be adopted when presented with contested evidence on an interim parenting hearing:

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

2. I consider that a cautious approach should always be adopted in circumstances where the evidence has not been tested.  That does not mean that the Court is not able to make an appropriate interim order.  Although the Court should generally be risk adverse and cautious, it does not mean that I am obliged to only make orders consistent with the current practice of the parties or that mirrors the earlier arrangement.

3. The competing applications of the parties must be considered pursuant to s 60B of the Family Law Act 1975 (Cth) (“the Act”), which outlines the objects and the principles underlying Part VII of the Act.

4. Section 60CA of the Act requires that in deciding whether to make a particular parenting order the best interests of the child is of paramount consideration. In order to determine what is in the child’s best interests, the Court must consider the provisions of s 60CC of the Act as to the primary considerations contained in s 60CC(2) and the additional considerations in s 60CC(3).

5. It is a trite observation that there is no provision or mention of “relocation” in Part VII of the Act. That observation does not ignore that a relocation of a child without the remaining parents’ consent and knowledge is likely to engender strong opposition. Relocation cases, in particular where the issue is being dealt with on an interim basis, are difficult and are likely to cause distress and upset.

6. The Court should not be distracted by the heightened emotions of the parties.

7. In Sayer & Radcliffe and Anor [2012] FamCAFC 209 at [47] the Full Court restated their position as follows:

   It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. …

8. I am obliged to consider the practical consequences of a relocation of a child, taking into account the impact on the child, the child’s circumstances in the new environment and the consequences of any reduction in the proximity to the remaining parent. 

9. That exercise is to be undertaken by a consideration of the separate proposals of the parties and what is to be in the child’s best interests with a focus on what is practicable.

Parenting considerations

1. I propose to adopt the following approach:

   a)Give consideration to the separate proposals put by each of the parties as they were identified and put to the Court;

   b)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2);

   c)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interest;

   d)Have regard to the primary considerations under s 60CC(2) of the Act, namely, the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm;

   e)Have regard to the additional considerations of s 60CC(3) of the Act; and

   f)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and s 60CC(3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation and comment.

2. Considerations of evidence adduced by each of the parties is necessarily tempered by the Court’s inability to test the evidence and as discussed, the evidence and issues raised by each of the parties are approached with caution.

Meaningful Relationship

1. Section 60B(1) of the Act provides the aims and objects of the Act are to ensure that the best interests of a child or children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.

2. The child Y participated in a child inclusive conference on 8 April 2020 and again on 20 August 2020. 

3. The parties are not agreed as to the future arrangements for the child.  At least until December 2020, but possibly into 2021, the father’s proposal involves the child travelling to Country C to live with him for the period of his deployment.  The consequence of the child’s relocation to Country C from G City is that other than arrangements that may be made for the father and the child to return to G City, there is no realistic possibility that the child will be able to spend physical time with the mother and her sibling. 

4. There has not been a determination as to the state of the relationship between the child and her mother.  It appears to be problematic and there is the assertion by the father, that there is a practical consideration arising from the trenchant resistance of the child to returning to the mother’s household at this stage. 

5. The father’s proposal therefore would effectively separate the child from the mother and her sibling for some months. 

6. The mother recognises that at age fourteen years the child has a right to decide where she wants to live.  Whilst the mother accepts that the child is keen to continue residing with the father, the mother contends that the father has conducted a campaign of alienation.  The consequence of the child’s decision is that it does not recognise, nor bring to account, issues of health, safety and education that are attendant upon the child should she live with the father in Country C. 

7. The mother would seek that either the child return to her home and be reunited with her sister or live with the maternal grandparents in Adelaide and have the advantage of proximity to the mother’s home.

8. There is a relationship between the child and each of the parties. 

9. The extent of the relationship was explored by the family consultant.

Child’s wishes

1. At the time of the first assessment, the family consultant was able to interview the child in person. 

2. The child presented as a “healthy, personable and well-groomed girl.  She spoke with confidence to the writer, with appropriate non-verbal body language”.[1]

   [1]Child Inclusive Conference Memorandum dated 8 April 2020 at [22].

3. The family consultant recorded that the child was unwavering and categorical in her desire to live with her father and she raised issues of conflict and trust with the mother. 

4. It appears that each of the parties may have engaged in some denigration in respect of the other.  The child reported to the family consultant that the mother had routinely criticised the father. 

5. The child also confirmed her concerns about travelling to Adelaide to spend time with the mother and feared, if given the opportunity to do so, the mother may stop the child from returning to the father’s care.  There were significant issues of trust raised by the child and consequent upon the first assessment, the family consultant considered that weight should be given to the child’s wishes. 

6. The more recent assessment was undertaken in circumstances where the mother asserted that the child had given her mixed messages about the potential for her imminent return to Country C.

7. The family consultant was able to conduct an interview with the child with only a few hours prior notice.  The Court expresses its gratitude for the professionalism and assistance provided by the family consultant. 

8. The child’s views had not changed.  She was intent on re-joining her father in Country C and was determined in her opposition to returning to Adelaide. 

Is the child at risk

1. The family consultant did not consider that there were any significant aspects of risk occasioned to the child by the behaviour of the mother and the father.  That is not to say that the child is not affected by the ongoing conflict but neither party could be said to present as an unacceptable risk to the child.

2. The mother has been consistent in expressing her concerns as to the child’s physical environment in Country C.  The mother remains concerned as to physical safety and the father’s alleged lack of discipline and control over the child. 

3. Those matters were the subject of discussion by the family consultant. 

4. The child is not venturing into the unknown should she live with the father in Country C.  She has been to Country C before and has a good understanding of the school at which she will attend and the home environment.

5. It could not be said that Country C provides the same level of opportunity as would be available in G City, nor the proximity to Adelaide that would allow the potential for some contact between the child, her mother and sister. 

6. A regrettable aspect of the proceedings has been the separation of siblings.  Some evidence has been presented by each of the parties in this regard and at one stage the father sought to have the primary care of both children.  It appears that his deployment changed his attitude to that application and he now only seeks the ongoing care of Y. 

Proposed living arrangements of the child

1. The father is a member of the Australian Defence Forces.  It is reasonable to assume that his accommodation will be satisfactory and that there will be adequate safety measures put in place. 

2. Whilst the parties are not able to reach agreement and whilst I do not ignore the genuinely held concerns of the mother for the child’s physical safety, it is not borne out in evidence and does not appear to accord with the child’s lived experience of her earlier visit.

3. The child is not able to remain in G City and there is the very real prospect of a refusal to return to Adelaide and either live with the mother or the maternal grandparents. 

4. In the circumstances of this case, I consider that the evidence of the family consultant is that I should afford significant weight to the child’s wishes and in circumstances where I am not satisfied that evidence exists as to any risk to the child in Country C, orders should be made that would facilitate the child’s travel.

5. As I do with all cases involving a proposal by a party for the physical removal of the child from the Commonwealth of Australia, I have to consider whether there is the potential that the father is a flight-risk and will retain the child overseas. 

6. The father’s presence in Country C is a deployment as a result of his occupation. 

7. I am satisfied that any risk is low and that the interests of the child are served by supporting her wish to live with her father. 

CONCLUSION

1. I make orders as appear at the commencement of these reasons.

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 25 August 2020.

Associate: 

Date:  25 August 2020