Ogilvie & Farnam

[2021] FCCA 811

FEDERAL CIRCUIT COURT OF AUSTRALIA

Ogilvie & Farnam [2021] FCCA 811

File number(s):

ADC 6132 of 2020

Judgment of:

JUDGE BROWN

Date of judgment:

17 March 2021

Catchwords:

FAMILY LAW – parenting – interim hearing – unilateral interstate relocation of the children –where undertaking given and not honoured – best interests of the children – competing live with applications

Legislation:

Family Law Act 1975 (Cth), ss 60CC

Cases cited:

AMS & AIF [1999] HCA 26

Campbell & Spalding [1998] FamCA 66 (unreported)

Goode & Goode [2009] FMCAfam 1405

Marvel & Marvel [2021] FamCA 83

Morgan & Miles (2007) 38 Fam LR 275

Number of paragraphs:

115

Date of last submission/s:

16 March 2021

Date of hearing:

16 March 2021

Place:

Adelaide

Counsel for the Applicant:

Ms Dickson

Solicitor for the Applicant:

Culshaw Miller Lawyers

Solicitor for the Respondent:

Ms Comley of Comley Legal

ORDERS

ADC 6132 of 2020

BETWEEN:

MR OGILVIE

Applicant

AND:

MS FARNAM

Respondent

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	17 MARCH 2021

THE COURT ORDERS THAT:

1.Within seven (7) days of today’s date, as agreed between the parties, the mother deliver the children X and Y both born in 2008 to the father in Sydney.

2.Until further or other order the children live with the father in Adelaide.

3.The mother have telephone communication with the children at times and on such occasions as agreed between the parties.

4.That the parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the children and, at the discretion of the family consultant, observed interaction of the children with any relevant adult person in addition to the parties as the assessor considers appropriate, the assessment to be carried out by a person agreed in writing between the parties within 14 days with the costs of such assessment and the report arising from such assessment to be borne equally by the parties.

5.Further consideration of the matter is adjourned to 27 August 2021 at 9:30am for directions NOTING the parties are to dial in on 1800 132 423 followed by 7076931952#.

6.Liberty to apply.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

(Settled from ex temp reasons)

JUDGE BROWN

1. In the jargon of lawyers, this is an interim unilateral relocation case which concerns two children, who are twins.  They are X and Y, born in 2008.  Accordingly, X and Y are each 13 years of age. 

2. It seems clear that they have had a comfortable and well-resourced upbringing up until now.  As such, given the ages of the children and their background, it seems more likely than not that they will have preferences and views concerning their future living arrangements, particularly with whom of their parents they would wish to live primarily.

3. The children's parents, who are the parties to these proceedings, are their father, Mr Ogilvie, who lives in Adelaide, and their mother, Ms Farnam, formerly Ogilvie, who lives in Sydney.   It is the fact of these disparate locations and the circumstances leading to their selection, which is at the heart of this difficult case, which arises at an interim or provisional stage.

4. Up until this stage, X and Y have lived in both Sydney and Adelaide, whilst the marriage between their parents had continued.  In these circumstances, and I will endeavour to provide more details in due course, the parents have done what parents do, they have consensually made arrangements in respect of the care of the two children, including deciding which schools the children should attend, whilst they have lived complex lives, in two states, and continuing to pursue employment in different states.

5. The marriage between the parties has recently broken down in stressful and emotional circumstances to all concerned.  The children and their parents are adjusting to this challenging situation and will continue to do so.  It is in these circumstances that it falls to me to make important decisions in regard to the children. 

6. Each parent acknowledges that there must be an independent, professional and objective assessment undertaken of the views of the children, particularly directed towards the canvass of their individual preferences and what factors are impacting upon the formulation of those views. 

7. Given the circumstances of the party's separation, and what has happened afterwards, the parties have not, as yet, put into place that process and, at this stage, cannot agree on how it is to be conducted. 

8. Essentially, where the parties disagree is where that assessment should take place and its circumstances, particularly where the children should live pending this investigation.  This, in turn, is likely to determine whether there is to be any final hearing of the party's competing applications.  

9. In addition, it seems more likely than not that there will be a raft of other issues arising between the parties which will have to be sorted out given the end of their marriage.  At this stage, how their property is to be distributed is far from clear and, if necessary, what process will be engaged for that. 

10. The father's preference is that the investigation of the children's views should take place in Adelaide, where he lives.  Underpinning the father's case is his assertion that prior to the party's final separation, which occurred probably in October of 2020, although prior to that time the relationship between the parties was clearly in some difficulties, that there was a consensual status quo, which had led to the children living with him and two of their older siblings in Adelaide and attending a private Catholic school in Adelaide, B School. 

11. It is his case that the mother has unilaterally disturbed this status quo by failing to return the children to Adelaide following the end of year 2020/2021 school holiday. 

12. In addition, the father asserts that the mother has breached a formal undertaking, provided under the provisions of the Family Law Act1975 (Cth) (‘The Act’) on 15 January 2021, that she would return X and Y to Adelaide, and the father's care, no later than 27 January 2021.

13. In these circumstances, the father contends that important public interests are engaged and the Court should not easily excuse the mother from the formal promise which she has made to the Court.  Essentially, undertakings are solemn documents and it is in the public interest that they be supported by the Court.

14. For her part, the mother denies that there is any such status quo.  She asserts that it is axiomatically clear that the children have, over the past six or seven years, lived in her primary care and that has predominantly been in Sydney. 

15. As such, the only status quo factor which she asserts has existed between the parties, following the separation, was that the views of the children would be professionally canvassed and thereafter respected, thus negating the need for any Court proceedings. 

16. In these circumstances, it is her position that it is the father who has reneged on this agreement by commencing these proceedings without the children's views being consulted.  From her perspective, this is a significant breach of faith and is emblematic of the father's bullying attitude towards her. 

17. The issues in this case are complex and have coalesced over a number of years, including during the dislocation created in the past 12 months by the pandemic lockdown and emergency.  The case arises in emotionally fraught circumstances.  It was listed yesterday, before me, in what is called the duty list. 

18. This is the list of cases which come into Court for the first time.  It is usually a busy day and is analogous to the accident and emergency department of a hospital where triage is given to cases depending on their level of crisis and emergency and they are allocated resources in an appropriate way commensurate with the issues arising. 

19. Due to restrictions placed by the Commonwealth Government in terms of the use of court buildings, at this stage, the duty lists have been conducted through electronic means due to the fact that they involve, usually, quite a large number of people, clients, solicitors, barristers and interested persons,

20. I acknowledge that this is highly artificial.  It is alienating to the parties concerned, who for obvious reasons would prefer that important decisions are made face to face in the solemn setting of the court room.  In addition, such a location is more amenable for the parties concerned to reach a consensual outcome, which is more often than not preferable for any children concerned.

21. However, due to the polarised positions of the parties in this case, it was impossible for the case to be deferred and, indeed, I have been urged to deal with it as expeditiously as possible.  Accordingly, I dealt with it in the duty list.

22. The submissions of the party's respective lawyers concluded shortly before lunch time.  I had other court commitments in the afternoon, particularly, I think, three or four interim hearings.  In these circumstances, the case was adjourned until today for the delivery of these reasons.

23. Due to pressure of time, I have not been able to have them reduced to writing.  I regret the burden placed on all concerned arising from having to listen to these reasons on the telephone.  It would have been my preference to have dealt with the case in person. 

24. It would also have been my preference to have given the parties some opportunity to see if they could find some common ground.  Regrettably, neither of these objectives have been able to be achieved and it falls to me, in the short to medium term, to determine where and with whom of their parents the children should live.

25. It is now necessary for me to define the jargon I provided at the outset of these reasons for judgment.  Firstly relocation.  Relocation cases arise when one parent, very often for compelling and understandable reasons, relating to work or the formulation of new relationships, wishes to live in a location different to that in which he or she and any children concerned have hitherto lived.  In these circumstances, the moving parent wants to live with the children concerned, far away from the other parent.

26. As such, relocation cases throw up competing claims of right.  On the one hand, Australia is a free and democratic country.  As a consequence of such considerations, individuals living in this country, including parents, are entitled to live how and where they choose. 

27. There is no principle of law that parents, once they have separated, are obliged to live in close proximity to one another so that their children can have the best possible relationship with each of their parents.  Such a principle would offend rights implied into the Australian constitution by the High Court that Australian citizens have a right to freedom of movement.

28. On the other hand, pursuant to the provisions of the Family Law Act, children have a right to interact regularly with their parents.  Clearly, this right may be impinged upon if those parents live in widely dispersed locations.  Accordingly, relocation cases are difficult.  The High Court has indicated that each such case requires close and idiosyncratic examination.

29. For the reasons I've provided, I was not in a position to give this close examination yesterday in the duty list.  Certainly, I was not in a position to conduct a full hearing of all the delicate and nuanced aspects of each of the parties' cases. 

30. Accordingly, it is usually considered preferable that issues in respect of the relocation of a child not be decided at the interim stage, given that such decisions have potentially very serious ramifications for children, their parents and others who are close to the children concerned.

31. In addition, there is a real risk, I think, that determining a relocation issue in an ad hoc manner at the interim stage may make the need for a final hearing redundant and, as such, render a significant level of injustice to one or other of the parties, who will perceive that their preferred outcome for the case has not received a full and proper consideration from the Court.

32. As such the Full Court of the Family Court has indicated that it is usually 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 parents, particularly, if that recent development has been created by the actions of one parent alone.  Essentially, the Court should not condone a parent exercising some species of self-help which tilts the playing field in favour of one of the parents. 

33. That would not be fair and, indeed, would not be in the best interests of the child or children concerned because it would preclude the intricate examination such cases require as directed by the High Court.  In this regard the relevant authorities are AMS & AIF[1] and Campbell & Spalding.[2] 

    [1] [1999] HCA 26.

    [2] [1998] FamCA 66.

34. I now turn to the distinction between an interim and a final hearing.  Although the legal principles to be applied in general terms at the final and interim hearing stage are the same, essentially that the best interests of the child are the paramount or most important consideration, the format of the two types of hearing is fundamentally different. 

35. As the parties will be aware yesterday's hearing took place in a truncated form.  There was no cross-examination of either of the parents concerned.  In addition at this early stage, and particularly germane to the present case, there is complete lack of expert evidence in respect of the idiosyncratic dynamic of the family concerned.  Such expert evidence in the form of a specialised family report is usually essential to the Court's determination of issues concerning a child or children, at the final hearing stage. 

36. The parties agree, indeed, that such a report is essential but I do not have it.  As a consequence the views of the children - what is impacting upon them - indeed, the fundamental nature of the children's relationship with each of their parents is controversial.  At final hearing stage the evidence is much more extensive. 

37. It is also capable of more thorough scrutiny.  The parents concerned are cross-examined and asked questions about their past conduct.  Significantly again the opinions or views of any expert can also be subject to examination.  The Full Court in the case of Goode & Goode[3] has cautioned the Court that in cases in the interim stage should not be drawn into substantial issues, which cannot be determined at this stage, but rather should endeavour to ascertain matters that are agreed or are not controversial and leave the resolution of factual controversies to the final hearing stage. 

    [3] [2009] FMCAfam 1405.

38. In addition, and the parties will be well aware of this, cases involving children and relocation, arising at the interim stage, invariably involve a family in severe crisis.  In these circumstances the evidence which is available is often incomplete because it has been hastily gathered.  The positions of the parties concerned are likely to be polarised in the extreme.  All these factors are present in the current matter, yet given the nature of the crisis, the Court must make a decision to regulate the position of the children pending a more exhaustive enquiry, unless the parties themselves are able to reach agreement. 

39. It is important for me to point out to the parties concerned that the decision I will make at this stage is provisional in nature.  As such it is capable of being changed or reversed if more evidence comes to hand.  What I must do at this stage is put into place the arrangement that I think is the one most calculated to serve the bests interests of the children.  But at the same time I have to be aware of my obligations to ensure that whatever final hearing is needed can be conducted fairly and on a metaphorically level playing field. 

40. The Full Court in the case of Marvel & Marvel [4] has indicated as follows:

    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.

    [4] [2021] FamCA 83.

41. I emphasise again that I am not determining the long-term living arrangements for X and Y rather what I am doing is putting in place arrangements for their care until there can be a full hearing of the matter.  It is in that context that significant controversies arise.  Given the nature of this hearing and the lack of expert evidence I am not in a position to resolve those issues. 

42. In brief, it is the mother's case that if X and Y are returned to Adelaide they will be emotionally harmed and feel unheard and disregarded by their father and, indeed, the Court which may do untold damage to their relationship with him. 

43. On the other hand the father asserts the mother has exaggerated her concerns and has herself manipulated the children by a course of conduct designed to get her own way and this of itself is not a prime exemplar of the responsibilities incumbent on being a parent. 

44. At this stage I am not in a position to make concluded findings of fact about the parties' respective motivations.  Each essentially claims to be working to preserve X and Y's best interests in the face of opposition from the other party. 

45. The parties have each allocated significant resources to this case which has been on foot for a matter of weeks.  Hitherto, the case seems to exhibit some of the worst aspects of adversarial process relating to children. 

46. The father as I understand it was previously a professional sportsman.  He is now the manager of a company which has not been specified to me.  I do not know what his level of salary is.  I do not know what his other financial resources are but he has allocated $30,000 so far towards the payment of his legal fees. 

47. The mother by way of background I think is a public servant but she has had a variety of other business interests and seems to have something of an entrepreneurial bent.  I think she was the manager for an allied health company and at present she wants to start business in Sydney. 

48. By way of background the father commenced these proceedings on 21 December 2020.  The mother was served with his application by email on the same date.  Although it was not until 5 March 2021 that she formally responded. 

49. The father's position is that the parties should have equal shared parental responsibility for X and Y and the children should live with him.  In the circumstances he is not in a position to delineate any detailed provisions for the children to spend time with their mother.  At this stage, no doubt, those issues depend on whether she is living in Sydney or Adelaide. 

50. Most significantly in December of 2020 the father clearly indicated that he wanted an injunction made restraining the mother from changing the children's place of residence from C Street, Suburb D, changing the children's enrolment at B School or removing the children from the metropolitan area of Adelaide. 

1. Although I do not think it was strictly necessary for him to specify, he also sought an injunction preventing the mother from enrolling the children in the other school.  As I say the mother responded to this application on 5 March 2021. 

2. It is her position that the two children should live with her in Sydney and that she should have sole responsibility for the children's education. Otherwise she concedes that the parties should be conferred equally with parental responsibility for Y and X. 

3. She wants the children to live with her in Sydney and spend time with their father during school holiday periods with handover to be at an agreed location or at the Sydney airport.  It is uncontroversial that the parties began their relationship with one another in 1995. 

4. It is clear that the mother grew up in Sydney and has strong connections there.  As I understand it in the past and at present she lives in a flat in the Sydney suburb of Suburb E which is owned by one of her relatives.  Her father who was a long-term resident of Sydney has recently died. 

5. The parties began to live together in early 1998 and married in 2010.  They are not as yet divorced.  Besides X and Y they have three other children. 

6. The children are Ms F who was born in 1990.  Given her age Ms F lives independently in Sydney. 

7. The next child is Ms G who was born in 2001.  She lives with the father at the present time in what I will describe as the former family home at Suburb D in suburban Adelaide.  I think she attends university, but I may be mistaken about that. 

8. Next, there is Ms H, who was born in 2003.  She too lives in the Suburb D home.  She completed year 12 at B School in 2020.  I may have been told, but I cannot recall what are her precise plans are for 2021. 

9. In 1998, the parties were living in Adelaide.  The father, in the past, has lived regularly in Melbourne due to his sporting commitments.   In 2014, the father was offered a job in Sydney.  At this stage, the children remained in Adelaide with their mother.  At this stage, it was the mother's position that she was comfortable in Adelaide and had became accustomed to living there.

10. In 2016, the family - apart from Ms F - moved to Sydney.  Ms F remained in Adelaide to finish the last year of her secondary schooling.  The family lived in Suburb E, and Y and X went to primary school in Suburb E.  In January 2017, the father returned to Adelaide with Ms G because he had a job offer in the city. 

11. The other children remained in Sydney with their mother.  In the middle of 2017, Ms H returned to Adelaide and went to B School.  The parties sold their former home in Adelaide and commenced to construct their home in Suburb D.  That seems to have taken some time, but the house is now finished, and it is very close to B School.

12. In late 2019, or early 2020, Y and X returned to Adelaide and commenced at B School for 2020.  Their mother remained in Sydney, where she had job obligations.  It would appear to be the case that the mother was later made redundant by her employer in Sydney, and in these circumstances, the father hoped that the mother would look for work in Adelaide.  The mother's admission is that between 2017 and Y and X's return to Adelaide, they only saw their father infrequently. 

13. It is, I think, implicit that she agrees that she acquiesced to the children returning to Adelaide so that they could commence school at B School in 2020.  Significantly, she concedes that she intended herself to move to Adelaide from Sydney, and in her affidavit, she deposes as follows:

    Our marriage was suffering as a consequence of us residing in different states, and I very much wanted to have greater contact with Ms G and Ms H, who were living in Adelaide.  I was hopeful that if we all lived together, as a family again, our marriage would survive. 

14. It is her case that she canvassed, with the father, the prospect of he and the twins moving to Sydney, but the father was adamant that he would not go to Sydney.  It is her case - and whether this is so or not, I am not in a position to say - that Y and X also wanted to do their secondary education in Sydney. 

15. In any event, it is clear that the easy relocation of the mother to Adelaide did not occur, and - as I indicated at the outset - during 2020, which was a difficult year, the parties were able to manage living in different states.  Indeed, they had done this for many years.  What changed was that the marriage fell into difficulties in the latter part of 2020.  These difficulties were compounded by the COVID-19 disruptions. 

16. The parties - following their separation - attempted some mediation with Mr J in late 2020.  Perhaps not surprisingly, given the recentness of their separation, this did not assist them.  In early December of 2020, X and Y travelled to New South Wales with their mother and Ms G.  They returned to Adelaide on 16 December 2020. 

17. The parties seem to have been getting on reasonably well - or at least, were able to agree arrangements.  In this context, the mother makes significant reliance on two text messages that were exchanged between the parties around about this time. 

18. On 11 December, the father said to the mother:

    I could get X and Y into family counsellor on 22 of December.

    To which the mother replied:

    Okay, that's good.  I'll talk to you later as I just had a few questions.

19. On any view, hardly an exhaustive exchange of views.  It is the mother's case that the children needed to be interview, because they did not like B School, which they had attended in 2020, and they did not like living predominantly with their father. 

20. In these circumstances, it is her position that she was shocked by the father instituting proceedings, which he did shortly prior to Christmas.  As I say, it is her position that this was a breach of good faith.  This may be her perception, but the father was not precluded from bringing a case. 

21. In addition, it is clear that the children had been in Adelaide for a reasonably lengthy period of time, hitherto with the mother's acquiescence.  There was no formal process put in place to canvas the children's views.

22. In addition, although the parties themselves are free to agree on any parenting arrangements that they think are appropriate, there is no legal principle that the children's views alone are the determining factor of what is in their best interest - although, given the background of this particular family, those views are likely to be central. 

23. In addition, as I have already indicated, there are likely to be a plethora of issues between the parties, which may have to be resolved by judicial intervention. 

24. In these circumstances, it seems some preliminary arrangements were made for a social worker – Ms K - to interview the children and provide a family report in March of 2021.  However, those arrangements have fallen by the wayside.

25. The mother wanted to have some more holiday time with the children.  She wanted to spend some time on the coast of New South Wales.  The father was concerned about this.   In this context, he mother had the father's application and it is quite clearly indicated that he has put in dispute whether the children should leave Adelaide.  The problematic issue of relocation has been engaged, as was likely to be inevitable given the parties' separation and the reality of their parenting over the last few years.

26. It is the father's position that the children ought to be able to spend time with their older siblings regularly, two of whom, with whom they share a home.  The mother's case is that she was very upset that she had not seen the children for a significant period of time, following their return to Adelaide on 16 December.  She was desirous of seeing them and ascertaining how they were travelling emotionally.

27. In these circumstances, discussions occurred between the parties' respective legal advisors, which resulted in the mother providing the father with a formal undertaking, the terms of which are as follows: 

    I will take X and Y - both born in 2008 - to Canberra Airport on or before 27 January 2021 in sufficient time to board a return flight as booked by Mr Ogilvie to Adelaide.

28. It is not a complicated document.  It arises in the context of the father's application which, again, is not unduly complicated.  It is clear - and there is no dispute - that the children did not board the aircraft concerned, and on 27 January 2021 that the mother sent the father a text message, to the effect of which is that she could not get the children to get on the plane. 

29. This led to the father filing an application in a case, which he did on 29 January 2021.  On any view, he wasted no time bringing the proceedings.  The mother took some time to respond to that application.  She did so on 5 March. 

30. For reasons about which I am not altogether clear, the interim application was not given an early hearing, but was listed concurrently with the date given for the return of the father's application - which, on its face, did not disclose urgency. 

31. In the meantime, the father has visited the children in Sydney from time to time.  It is the father's position that this has been extremely awkward and the mother has precluded him having a natural engagement with them. 

32. It is his position that the children are confused and upset which, regardless of who of the parents is responsible and, indeed, even if no one is responsible, does not strike me as being surprising. 

33. The mother's position is that the children find their father's behaviour over the top.  That they are intimidated by him.  That they feel that their father doesn't listen to their feelings.  And, generally, he is a person who rides rough shot over them and, indeed, their mother's feeling and preferences.

34. In summary, Ms Farnam deposes that Mr Ogilvie “seems unable to consider the children's wellbeing and separate this from his personal dispute with me”. 

35. On the other hand, it's the father's position that he has an excellent relationship with the children.  He has always been a hands-on dad and he asserts that the children are quite happy here.  He also says they have an excellent relationship with Ms G and Ms H. 

36. Those, in my view, are the sorts of issues, in respect of which the Full Court in Goode & Goode[5] has urged me to be careful about getting involved at this initial stage.  I simply cannot resolve them.  So the parties, in the aftermath of a traumatic year in 2020, have got themselves into a complete muddle.

    [5] [2009] FMCAfam 1405.

37. I am gravely concerned that when they enlist me to resolve that muddle, at this interim stage, there is the very real prospect that I will make things worse for the children, however, there is no alternative to this.  The parties present me with a dispute and it is my obligation to resolve it on a provisional basis.  The problem is what mathematicians refer to as a zero sum game.  It presents only two outcomes.

38. In the absence of compromise, I have to make a decision.  In short, it's the father's position, that with the completion of the Suburb D home, the move of Y and X to Adelaide in early 2020, there is a status quo, to which the mother agreed, that the children would live in Adelaide and attend B School as Ms H had done before them. 

39. The mother's position is that the only agreement or status quo between the parties was that they would get a report and see what the children wanted and would abide by it. And as I say, she says the father has reneged completely on this agreement and has ignored the fact that she has always been the children's primary carer, more often than not, in Sydney rather than Adelaide. 

40. To a certain extent, both parties' positions have some validity.  I now turn to the legal issues - the legal principles I have to apply to determine the case. 

41. The best interests of the children concerned is the most important consideration in the case.  Pursuant to the ethos of the Family Law Act, and at common law, parents are conferred with joint responsibility for making decisions about the care of their children, and in particular, making major decisions in respect of their children's long-term care, welfare and development

42. Major long-term decision is defined in the Act and includes decisions about the children's education.  In these circumstances it seems clear that the parties agreed that, in 2020 and thereafter, X and Y would attend B School.  That was an agreed position. 

43. The father certainly did not agree to the children attending school in Suburb E. I am required, at final hearing, in determining how the best interests of the children are concerned, to consider a long list of matters containing section 60CC of the Act.

44. There are two categories of matter which I must consider, the primary considerations and a longer list of additional considerations.  There are two primary considerations.  Firstly, the need to ensure that children have a meaningful relationship with each of their parents, and secondly, the need to ensure that 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

45. As I say, the additional considerations are more numerous.  Significant in this case, additional considerations relating to the views of the children and any factors impacting on those views.  I have no evidence about those matters as such.  The nature of the child's relationship with each of her parents and other persons who are significant to the child's welfare.  The likely effect of any changes in the child's circumstances.  Considerations relating to the parental insight of the parties concerned. 

46. The primary considerations are generally given more emphasis, given the aims and objects of the Family Law Act.  Thankfully, this does not seem to be a case about family violence, neglect, or abuse.  X and Y are much loved children who are well cared for.

47. Whatever is the outcome of the case, at this interim stage, if the parties live some distance apart, the children concerned won't have the most meaningful level of relationship possible with one or other of their parents.  However, to a certain extent, this has been the reality of their lives for some years. 

48. At this stage, I don't really have any evidence regarding the parties' level of parental insight.  I, certainly, don't know what the children's views are.  In this case I think I have to be very careful about assuming that a family report will say one particular thing or another particular thing.  I just don't know. 

49. Rather, what I have to do is bear in mind the principles in Campbell & Spalding, to which I have referred, and a more recent case Morgan & Miles,[6] in which Bollen J 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 type of cases in which the child's present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in Campbell and Spaulding remain apt and relevant to determination of these cases.

    [6] (2007) 38 Fam LR 275.

50. As I say, in Campbell & Spalding Warnick J indicated that the Court should not allow one parent, through a process of self-help, to arrange a suitable or more commodious position prior to final hearing.  In this case the status quo would appear to me that the children were settled in Adelaide and attending B School.  This came about with the mother's acquiescence.  How could it be otherwise given that she sent the children to Adelaide. 

51. The mother is, no doubt, aggrieved that the father has now commenced these proceedings.  I agree with her that litigation is not usually helpful to children and there are very grave risks that the parties will each spend considerable financial resources in pursuing the case.

52. But the case has begun and in those circumstances the father wanted to safeguard the status quo.  He was entitled to do so.  He did so formally.  The mother provided an undertaking.  It's not a complicated document. 

53. I do not think that it would be in the best interests of the children, nor indeed of other people who use the courts, that I should easily overlook the mother's unilateral actions.  I can appreciate why she has done what she has done.  Indeed I can appreciate why the father has done what he has done. 

54. It would be sensible, I think, if the parties could agree on some arrangement to canvass the children's views and work out arrangements in the short to medium term.  However, they are incapable of doing so at this stage. 

55. Rather, what has happened is what very often happens in cases like this with well-resourced litigants, the parties jockey for advantage over the other and, to use a cliché, each believes that all's fair in love and war.

56. The mother really wanted to present the father with a fait accompli.  The children were enrolled at a school in Suburb E about which she hadn't consulted the father, that is, in my view, not in keeping with the spirit of the Family Law Act. 

57. Regrettable as it is, particularly in terms of adding to the polarisation between the parties concerned, I have come to the view that in the short to medium term the two children should be returned to the care of their father and should resume at B School. 

58. The parties, at this stage, can't agree on who should do some examination of the children and prepare the family report.  Mr Ogilvie, I think, is open to either Ms K or Ms L;  Ms Farnam is not in favour of Ms M, but I think is open to Ms L.  They're both Adelaide based experts.

59. I don't consider it would be in the children's best interest to engage a psychologist in Sydney.  I haven't been provided with any material from any psychologist on whom the children have attended in Sydney.  I appreciate that there is the possibility that the children will be upset by this outcome. 

60. That's regrettable.  They may also, potentially, feel aggrieved at their mother's action, although she will resolutely dispute this.  There is a process in train to resolve these disputes between the parties.  As I have said, on several occasions, any decision at this stage can be reversed if more evidence comes to hand.

61. So I will direct that within seven days of today's date, at a date and time to be agreed between the parties, the mother deliver the children, Y and X, to the father, in Sydney to return to Adelaide.  And until further or other order, the children live with the father and spend time and communicate with the mother at times to be agreed between the parties. 

62. In the period of the adjournment I will direct that the parties undertake a family assessment report with an Adelaide expert, to be agreed between them at their joint expense and, then, I need to adjourn the case to a date after that report is likely to be to hand. 

63. The orders, I propose are somewhat general in nature, because I am acting on the assumption that everyone will be sensible.  I do not want to get a police officer to come and get the children.  Everyone has to make their decisions.  But, in the circumstances, I will grant liberty to apply. 

64. I suspect there will be other applications that the father will want to make, but at this stage, I think it is appropriate that the parties each consider where they are prior to me dealing with any applications for cost or any other matter. 

65. 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 fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.

Associate:

Dated:       17 March 2021