Parkington and Parkington

[2016] FCCA 2702

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARKINGTON & PARKINGTON [2016] FCCA 2702

Catchwords:
FAMILY LAW – Interim parenting – where mother relocates with children from northern Queensland to (omitted) region of New South Wales – family violence allegations – evidence considered – children to live with mother pending further order.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC,60CG, 61D, 61DA, 65DAA

Cases cited:

Goode & Goode [2006] FamCA 1346

Morgan & Miles [2007] FamCA 1230
Saleh & Saleh [2016] FamCAFC 100

Applicant: MS PARKINGTON

Respondent: MR PARKINGTON

File Number: WOC 939 of 2016

Judgment of: Judge Altobelli

Hearing date: 11 October 2016

Date of Last Submission: 11 October 2016

Delivered at: Wollongong

Delivered on: 2 November 2016

REPRESENTATION

Solicitors for the Applicant: Heard McEwan Legal

Counsel for the Respondent: Mr Gordon

Solicitors for the Respondent: Best Wilson Buckley

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The Applicant Mother shall have sole parental responsibility for the children X, born (omitted) 2010 and Y, born (omitted) 2012 (‘the children’).

2. The children live with the Applicant Mother.

3. The Applicant Mother be permitted to reside in the (omitted) Region of New South Wales with the children.

4. The children spend time with the Father:

   a.in the (omitted) or Sydney regions of New South Wales each third weekend from after school Friday to before school Monday with such time to commence on the second weekend following the date of these Orders.

   b.in any region within Australia during the 2016/2017  Christmas school holidays for a two week block period as agreed between the parties but failing agreement such time to commence from 12 noon on 26 December 2016.

5. For the purposes of Order 4 above changeover is to occur at an agreed public location with either parent having the option of using a nominee.

6. The children shall communicate with the Father via telephone, Skype or FaceTime as agreed between the parents but failing agreement between 5.30 pm and 6 pm on Mondays and Fridays (Sydney time) with such communication to commence from the first such day after the date of these Orders.

7. Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children X, born (omitted) 2010 and Y, born (omitted) 2012 and the Legal Aid Commission of New South Wales is requested to provide such representation. 

8. The parties are to provide to the Legal Aid Commission at PO Box K847, HAYMARKET NSW 1238 or DX 5 SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

9. Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they consider relevant to the issues before the Court.

10.Leave be granted to the Independent Children’s Lawyer to inspect and photocopy any documents produced on subpoena in these proceedings. 

11.Leave be granted to the Independent Children’s Lawyer to relist the matter on short notice by communication with Chambers in appropriate circumstances.

12.The Father:

a.Within 7 days inform the legal representative of the Mother of the name and address of the local general practitioner of the Father;

b.Submit himself to urine analysis under the supervision of his local general practitioner at such further time as the legal representative of the Mother might randomly nominate in writing to the legal representative for the Father on no more than one occasion each month;

c.Do all things to make available to the legal representative of the Mother the results of such urine analysis testing.

13.Pursuant to s.68B of the Family Law Act 1975, the parties be restrained from:

a.Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Child/ren.

b.Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.

14.The Applicant Mother file and serve an Amended Application, Financial Statement and affidavit by no later than 4.00p.m on 28 November 2016.

15.The matter be adjourned to 19 December 2016 at 9.30am for Mention.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 939 of 2016

MS PARKINGTON

Applicant

And

MR PARKINGTON

Respondent

REASONS FOR JUDGMENT

1. This case is about two children, X who is 6 and Y who is 4. They currently live with their mother, who is 36 years old, in the (omitted) region of New South Wales.

2. The Respondent is the children’s father.  He is 38 years old and lives in northern Queensland.  The Court needs to decide where the children should live, both geographically and in terms of which parent, and how much time they should spend with the other parent, and under what conditions. 

Background

1. On 12 September 2016 the Court determined the Mother’s application filed 9 September 2016 in Chambers and on an ex parte basis.  The Orders made are reproduced in the first schedule to these reasons.  On the basis of the Mother’s evidence contained in her affidavit of 9 September 2016, the Court made ex parte orders for the children to live with her, and to have no time with their father, pending further order of the Court. 

2. The matter came before the Court on 11 October 2016 during a duty list.  By then the Father had filed a Response which was supported by his affidavit, and an affidavit of his psychologist, Mr F.  At the interim hearing the Mother sought to maintain the ex parte orders made in her favour but on the basis that the children would spend some time with their father. 

3. Conversely, the Father sought orders for, in effect, the children to be returned to Queensland and for an equal shared care arrangement to be implemented between the parents.  His proposal moderated during the course of the interim hearing.

The Evidence before the Court

1. The Mother relied on her affidavit of 9 September 2016.  The Father relied on his affidavit sworn 6 October 2016, and that of his psychologist Mr F, also of 6 October 2016.  Documents were produced by Queensland Police, and were relied on behalf of the Applicant Mother.

2. The Mother was represented by her solicitor, Mr Losco.  The Father was represented by his solicitor, and Mr Gordon of Counsel. 

The Applicable Law

1. The applicable law is, of course, Part VII of the Family Law Act 1975.  The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

1. On the Father’s part, reference was made to Morgan & Miles. The Full Court, in Morgan & Miles [2007] FamCA 1230, made a number of comments relevant to the present circumstances in paragraphs 82 to 88:

   82. It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.

83. I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.

84. The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.

85. In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph. Whilst lengthy, it aids understanding to set out the relevant passages from Goode:

71. The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.

72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
73. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).

86. I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to 
s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.

87. As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.

88. It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it 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 C and S remain apt and relevant to determination of these cases.

1. In the Full Court’s recent decision in Saleh & Saleh [2016] FamCAFC 100, the Court considered how disputed and untested allegations of family violence are treated in interim parenting proceedings. The Court made a number of important points, including:

   a)Section 60CC requires a Court, when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. This is a requirement that does not really depend on there being findings of family violence, but focuses on risk, which can exist independently of disputed allegations;

   b)Section 61DA is in mandatory terms: “the Court must apply a presumption” that is in the best interests of a child for there to be an order for equal shared parental responsibility.  Section 61DA(3)  states that the presumption still applies “unless the Court considers that it would not be appropriate in the circumstances” for the presumption to be applied in making an interim order.  Section 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult.  It requires a cautious approach, especially in the context of s.60CG.

   c)Paragraph [68] in Goode, where the Full Court warns against inappropriately being drawn into matters of contentious fact, does not mean that merely because facts are in dispute, the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts: Eaby & Speelman (2015) FLC 93-654.

   d)An acknowledgement that at an interim hearing, a Judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible to simply ignore an assertion because its accuracy has been put in issue: SS & AH [2010] FamCAFC 13. This applies especially to family violence allegations.

   e)There is no requirement for corroboration or objective support for an allegation of family violence.  Family violence often takes place in private, in circumstances where no corroboration is available.

   f)A reference to the civil standard of proof is entirely inapt in the context of disputed family violence allegations in interim hearings.

2. It is unwise to simply ignore family violence allegations and find that the presumption of equal shared parental responsibilities applies.

Uncontentious Matters

1. There are a number of uncontentious matters.  The parents commenced a relationship in 2006, married in 2011, and separated in 2016.  There is no dispute that the children have always lived in a (omitted) city in northern Queensland, that X was attending school and Y day care in that city, and that the Paternal Grandmother played a significant role in the children’s lives.  There is no dispute that the Mother had a job in the city.  There is no dispute that the Mother has obtained an interim Apprehended Violence Order against the Father and that he has been charged with criminal offences arising out of an alleged assault.  It is common ground that the Father has bail conditions preventing him from attending the former matrimonial home.  It is apparent that the Father intends to contest the above proceedings.

2. It is apparent to the Court that the Mother does not put in dispute a number of matters contained in the report of Mr F, a psychologist based at a rehabilitation hospital in the city where the Father lives, and who has been treating the Father since 20 August 2016.  She does not cavil with those parts of the report which state:

   4(b) Mr Parkington has described a number of violent interactions with Ms Parkington.  He believes that she sometimes deliberately provokes him to violence using verbal abuse.  He admits to his share in the blame but asserts that the physical, emotional and verbal violence is mutual and often initiated by Ms Parkington.

3. There is no dispute that on or about 18 August 2016 the Mother unilaterally relocated with the children from the family home to a location in New South Wales and then subsequently resided in the (omitted) region of New South Wales.

1. It seems common ground from the material filed by both parents that they each worked in full-time jobs and that the Paternal Grandmother was involved in the care of the children before and after school.

The Cases Advanced

1. In short, the Mother’s case was that she unilaterally relocated to escape the family violence perpetrated by the Father.  She moved to the (omitted) region where, she asserts, she is well supported by her 2 siblings living in the area, and the children have the benefit of relationships with their cousins. 

2. The Court observes that the Mother’s evidence about the Father’s conduct, and particularly his family violence, is very detailed and extensive.  The Mother’s evidence about family violence commences at paragraph 35 and concludes at paragraph 69 of her affidavit.  She details violent incidents in December 2014, February 2015, June 2016 and 15 - 16 August 2016 which led to the relocation. 

3. At paragraph 43 of her affidavit, referring to the violence in December 2014, the Mother annexes a photograph, and text messages, corroborative of her assertions.  At paragraphs 64 – 68, the Mother annexes various statements, orders and photographs corroborative of her assertions of violence. 

4. The Maternal Grandmother, Ms M, provides a statement to police in which she gives direct evidence about the violence that occurred on 16 August 2016.  For example, she saw the Father standing in front of the Mother “still yelling at her”.  The Maternal Grandmother “looked at Ms Parkington and I saw an egg-shaped swelling come up on her left eye and I saw red marks under her chin on her neck.  Her left eye had swollen like a balloon”.  In relation to the Father the Maternal Grandmother stated, “Mr Parkington was in a complete rage.  His face looked like he was about to explode.” 

5. When the police attended, a rifle belonging to the Father was confiscated.  In the application for a protection order the police state:

   Police believe that the aggrieved is at risk of further domestic violence occurring.  Choking of the aggrieved by the respondent has been identified in the report furnished by the State Government “Not Now, Not Ever” as being a precursor to domestic violence related homicide, which puts the aggrieved at high risk levels.

6. Clearly, the police were concerned about the nature of the violence alleged.  Moreover, the photographic evidence is quite clear.

7. By stark contrast, the Father’s treatment of the violence allegations in his otherwise extensive affidavit is minimalist.  At paragraph 22, for example, he states:

   After the incident on 16 August 2016, Ms Parkington applied for a protection order against me.  As such, I was unable to contact her directly to make inquiries as to where the children were.

8. He previously refers in paragraph 19 to the “disagreement” that he had with the Mother.  At paragraph 106 of his affidavit he responds to paragraphs 35 - 48 of the Mother’s affidavit saying:

   I do admit that there was a physical altercation, but not to the extent that Ms Parkington alleges in her affidavit.  I certainly did not strangle Ms Parkington, punch or kick her. 

9. In the Father’s affidavit, he does not respond at all to the Mother’s paragraphs 48 – 54, which include the violence alleged in February 2015.  At paragraph 107 he responds to paragraph 55 of the Mother’s affidavit as follows:

   I deny that this incident occurred as described by Ms Parkington.  Ms Parkington was the one that actually attacked me.  I was simply trying to hold her away from me.  I kept pushing her away and she kept coming towards me.  Ms Parkington would often start the confrontations by punching or kicking me or often trying to scratch my face. 

10. He annexes photos of injuries sustained in this incident.  Curiously, the Father does not respond to the Mother’s assertions at paragraphs 2 and 4 of her affidavit that she is 140 centimetres tall, weighs 53.8 kilos, and is of slight build, whereas the Father is 185 centimetres tall, weighs 90 kilograms and has a large build.

11. The Father does not respond at all to paragraphs 57 – 59 of the Mother’s affidavit, dealing with the alleged violence on 15 August 2016. 

12. In responding to paragraphs 60 – 63 of the Mother’s affidavit he refers back to paragraph 51 in which he describes the incident on 16 August 2016 as being “a fight about our financial difficulties”.  He deposes that:

    Under no circumstances did I strangle Ms Parkington. 

13. He makes no mention, however, of the Maternal Grandmother’s presence in the home during this incident.

14. What must therefore be appreciated is that this is not a simple “he said:  she said” case.  There is ample evidence before the Court which would enable it to form a very strong impression that the violence occurred as the Mother contended.  It is no answer, with respect to those representing the Father, to contend that the family violence allegations will be dealt with in the context of a protection order and criminal proceedings.  Moreover, it is unhelpful to remind this Court of what the Full Court in Goode & Goode [2006] FamCA 1346 said about not being drawn into factual matters, when Goode & Goode was a case about how many nights a fortnight a Father should spend with his children, whereas this case presents family violence as the main issue, at an interim hearing.

15. The Father’s case quite properly focused on the unilateral nature of the relocation of the children, their removal from a familiar physical, social and psychological environment, as well as the practical issues that would be involved in maintaining a relationship when the distance between the respective cities is 2,300 kilometres, and the travel, including air travel, would be at least eight hours.  Implicit, if not explicit, in the Father’s case is the issue of how the Father would maintain a meaningful relationship with his children in the circumstances presented in this case if the children are not returned.

Discussion

1. The Court must make a decision that is in the best interests of the children, consistent with Part VII of the Act.  It must be remembered that Full Court decisions such as Goode & Goode, and Morgan & Miles might assist in the interpretation of Part VII, but are not a substitute for an application of the legislation. 

2. Moreover, interim decision making is fraught with difficulty and complexity, as compared to final decision making. When one looks at the objects and principles set out in section 60B of the Act, they can be applied with equal force in both the Mother’s case and the Father’s case. Section 60CC sets out how a Court determines what is in a child’s best interests, and it is through that template that the evidence that will be discussed.

3. The strong impression created by the material before the Court is that the children have a meaningful relationship with both of their parents.  The relocation creates a challenge for the continuation of this, particularly so far as the Father is concerned if the children remain in the (omitted) region of New South Wales.  Whilst the obstacles are formidable, they are not insurmountable. 

4. The Father filed a financial statement that he swore on 9 September 2016 which indicates that he has a surplus of income over expenditure on a weekly basis (and that is without any critical scrutiny of his claimed expenses).  He has savings.  His liabilities are modest.  The point to be made here is that the parents do not present to the Court as being “economically impoverished”, to pick up the words used by Her Honour, Justice Boland in Morgan & Miles.  Thus, distance is not necessarily an obstacle to the continuation of a meaningful relationship should it otherwise be in the best interests of the children to stay with their mother, where they are.

5. The Court must consider the need to protect the children from harm, and, in this case, that harm is associated with exposure to family violence.  The strong impression that is formed from the material before the Court is that there has been family violence, it has most likely been perpetrated by the Father, and it is likely that the children have been exposed to this violence.  The Court must protect the children from this risk.

6. Subsection (2A) of s.60CC makes it plain – the Court is to give greater weight to the need to protect the children, than to the benefit of the children having a meaningful relationship with both of their parents.

7. On the facts of this case, the question must be asked why the children cannot be protected from the harm whilst at the same time being returned to a familiar environment? 

8. The Mother’s case is that her ability to properly parent these children is compromised in a situation where she feels compelled to return to the place where violence occurred, and to a place where she feels isolated and unsupported in the new circumstances created by the irretrievable breakdown of the parental relationship.  Her argument is that she is well supported, both physically and emotionally, where she is presently.  This creates a supportive environment for the children. 

9. Moreover, on her behalf, concerns are raised about firstly the nature of the violence (which was not just physical, but involved choking, a matter that the Queensland Police obviously considered to be very serious, and a red flag indicator) and the fact that the Father appeared to be minimising his role in the violence, as well as externalising responsibility to the Mother, at least in part.  The Mother’s case, therefore, is that even if it were the case that both she and the children were physically protected from violence if they returned to Queensland, the Mother would not consider herself psychologically or emotionally protected from violence. 

10. In this regard, the Court acknowledges the offer made by the Father through his counsel that the Mother and children can return to occupy the former matrimonial home.  The offer may well be made with good intentions, but does not acknowledge the possibility, indeed the probability, that the Mother finds such an offer both intrusive, and controlling.  According to the Mother, most of the violence occurred in the family home.  The Court could understand her reluctance to return to the locus of that violence.

11. The Father assures the Mother, on the one hand, that she and the children are adequately protected as a result of the bail conditions imposed on him, as well as the temporary protection order.  On the other hand, of course, he protests his innocence and asserts that the matter will be vigorously defended in Court.  Indeed, his Counsel emphasised that there would be cross-examination (something which is absent in the present process, of course).  With respect, however, this is hardly reassuring to the Mother who, in the circumstances of a recent separation, and one in which she argues was precipitated by family violence, needs to be empowered to supportively parent her children in the circumstances of disruption that they have experienced.

12. The Court understands the Mother’s reluctance to return to the place where the violence occurred, according to her, and to a place that she considers herself to be isolated and unsupportive.  Whilst, in theory, both the Mother and children could be protected from the risk of violence if the children were ordered to return, in practice it would be returning them to the same psychological environment from which the Mother asserts they fled. 

13. The Court must consider other considerations.  Not all of them are relevant in the present context.  Not returning the children creates obstacles in terms of their maintaining their relationship with the paternal family, especially the Paternal Grandmother, who appears to have had a major role in their life.  This might be mitigated through appropriate spends time with and communication orders.  The Mother asserts that she was the primary carer of the children and thus the children have a relationship of dependency on her.  The Father does not directly cavil with this, but argues that he had a substantial involvement in the children’s lives.  Again, the focus of orders must be on seeking to create an environment in which that relationship can be maintained.

14. The major consideration, indeed a major concern for the Court, is the likely effect on the children of the changes in their circumstances, including separation from the Father and the paternal family.  This is an important consideration, but not determinative on the facts of this case.  An appropriate spends time with, and communication order, will address the psychological impacts of change.  The experience of change for the children is mitigated by the fact that their mother continues to be there.

15. There are issues of practical difficulty and expense, but as foreshadowed earlier in these reasons, the financial circumstances of the parties do not contraindicate implementing an arrangement in which these children can communicate with the father, and indeed the paternal family.

16. There are some emerging issues about parental capacity that cannot be dealt with at the present stage of the proceedings.

Orders in the best interests of the children

1. In what the Court considers to be a finely balanced case with strong arguments available to both the Mother and the Father, the Court considers that, on balance, the need to protect the children from further exposure to family violence tips the balance in favour of the Mother’s proposal for remaining with the children in the (omitted) region of New South Wales, pending a final hearing.  This case has a long way to go in terms of the evidence to be adduced, and the testing thereof.  This decision is considered to be in the best interests of the children at the present moment, but should not necessarily be determinative of what is in their best interests at a final hearing, whenever that should take place.

2. The focus turns now to the details.  Regrettably, the Mother’s proposal for the children to spend time with their father should they be allowed to remain in the (omitted) was not carefully considered, or articulated.  This, no doubt, reflected the haste with which the proceedings were commenced, and ultimately determined at an interim hearing.  The Mother proposed an order that the children spend no time with the Father “except as ordered by this Honourable Court”.  In effect, the Mother has left it to the Court. 

3. The Father’s proposal for the children to spend time with him also did not appear to contemplate an outcome whereby the children would remain in the (omitted) region of New South Wales.  Indeed, his initial proposal was that when the children were returned, there would be an equal shared week-about arrangement.  During the interim hearing, his Counsel communicated to the Court much greater flexibility on the Father’s part, including alternate weekend contact.

4. The harsh reality in this case is that the children will, for the time being, live 2300 kilometres away from their father and will need to endure 8 hours of travel each way, should they spend time with him in Queensland.  The Court is not prepared to place the children in that position for mid school term contact, at least pending the active involvement of an Independent Children’s Lawyer in this case.

5. Clearly, there is benefit to the children spending time with their father in the (omitted) region and thus, if he is able to manage the cost and practicality of implementing such an arrangement, the Court will order that he have the opportunity to spend time with the children either in the (omitted) region of New South Wales, or in Sydney, each third weekend from after school on Friday, provided the children are returned to school on the following Monday, with the first visit to occur on the second weekend following the making of these orders.

6. It was not a part of the mother’s case that the Father’s time needed to be supervised, and the Court did not discern concern on her part that the Father might be violent towards them, but rather that the children might be exposed to violence between the parents.  In the circumstances, therefore, there is no need to consider supervision, but the Court does believe it essential that the parents not come into physical contact with each other at changeover.  This might be achieved using an intermediary nominated by each parent, and with the changeover otherwise taking place in a public locality.

7. The first school holidays that the children will experience will be the December-January school holidays in 2017.  Again, pending the intervention of an Independent Children’s Lawyer, the Court proposes that the Father have one two-week block with the children which he can exercise wherever he likes, within Australia.  Unless the parties otherwise agree, this contact should commence from 26 December at 12 noon.

8. Provided there are no inappropriate discussions with, or in the presence of the children (and an order will be made in this regard binding both parents) there is no reason why the Father should not have regular Skype, FaceTime, or telephone communication with the children.  Subject to the availability of these facilities, the Father should initiate the communication, and the Mother facilitate the children participating in this communication.  Unless the parents otherwise agree, the Father should be able to communicate with the children between 5.30 pm and 6 pm on Mondays and Fridays (Sydney time) commencing from the first such day after the making of the orders. 

9. It seems impractical, at this stage, to consider more detailed orders about special days, etcetera, but again the Court hopes the active involvement of an Independent Children’s Lawyer may assist in filling in some of the gaps, particularly given the need to make urgent orders in this case.

10. The Father proposed equal shared parental responsibility, the Mother sole parental responsibility.  In this regard, section 61DA(2) is quite clear – the presumption of equal shared parental responsibility does not apply “if there are reasonable grounds to believe” that a parent  has engaged in family violence.  This statutory provision is, in this Court’s view, very carefully worded.  The threshold is quite low:  “reasonable grounds to believe”.  It does not say that the Court must make a finding, but only that there are reasonable grounds to believe that a parent has engaged in family violence.  The Court is satisfied on the material before it that those reasonable grounds exist.  Accordingly, the presumption does not apply.  Indeed, in circumstances where the parents are so geographically, let alone emotionally, distant from each other, an order for sole parental responsibility is in the children’s best interests. 

11. The Father’s response filed 7 October 2016 raises some property issues and thus the Applicant Mother will need to reply.  Indeed, given the rather sketchy nature of the relief sought in the Mother’s application filed 9 September 2016, the Court believes that it would, in fact, be more appropriate to order her to file an amended application that not only sets out more detailed orders in relation to parenting matters, but also deals with the financial issues raised.  This should take place within 35 days.

12. The Court has foreshadowed the need for an Independent Children’s Lawyer, given, at the very least, the very high level of conflict that is present in this case.  An order will be made in this regard.

13. The Father proposed, at order 22 of his Response, drug testing.  He has raised this issue, and the order is therefore quite appropriate.

14. None of the other orders sought by the Father appear relevant, for the time being.  The matter will be brought back for mention and case management some time in December.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 2 November 2016

Schedule 1

Orders of 12 September 2016

THE COURT ORDERS THAT:

1. Pursuant to Rule 1.06 of the Federal Circuit Court Rules 2001, the Court dispenses with compliance with these Rules.

2. Pursuant to Rule 1.05(2) of the Federal Circuit Court Rules 2001, the Court applies Rule 11.16 of the Family Law Rules 2004 to hear and determine this matter in Chambers exparte and without the consent of the parties, NOTING THAT the Respondent’s consent is not sought given that the Respondent has not been served and such consent could not be sought on an application of this nature.

1. Personal service of the Initiating Application and supporting documentation filed 9 September 2016 be dispensed with.

2. By way of substituted service, a sealed copy of the Initiating Application and supporting documentation filed 9 September 2016, together with a copy of these Orders, be served on the Respondent’s Solicitor via email.

3. The Children, X (born (omitted) 2010) and Y (born (omitted) 2012) live with the Mother.

4. The Children spend no time with the Father, except as ordered by this honourable Court.

5. The Father be restrained by injunction from communicating with, telephoning, contacting or attempting to contact the Mother.

6. The Father be restrained by injunction from removing or taking possession of the Children.

7. Leave be granted to the Mother to file more than five subpoena.

10.The matter be listed for first return date on 11 October 2016 at 9:30am.