Parkinson and Jorkins

[2011] FMCAfam 719

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARKINSON & JORKINS [2011] FMCAfam 719

FAMILY LAW – Interim parenting – unilateral relocation – serious allegations of family violence – no order for return made – final hearing expedited.

Family Law Act 1975, s.60CC

C & S [1998] FamCA 66
Goode & Goode [2006] FamCA 1346
Morgan & Miles [2007] FamCA 1230

Applicant: MR PARKINSON

Respondent: MS JORKINS

File Number: SYC 3682 of 2011

Judgment of: Altobelli FM

Hearing date: 7 July 2011

Date of Last Submission: 7 July 2011

Delivered at: Sydney

Delivered on: 8 July 2011

REPRESENTATION

Counsel for the Applicant: Mr Maddox

Solicitors for the Applicant: Phillip A Wilkins & Associates

Counsel for the Respondent: Ms Goodchild

Solicitors for the Respondent: Aboriginal Family Violence Prevention & Legal Service

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The Children [Z] born [in] 2001, [X] born [in] 1999 and [Y] born [in] 1999 live with the Mother in the State of Victoria.

2. The Children spend time with the Father as follows:

   (a)One weekend per fortnight in the State of Victoria at [omitted] Children’s Contact Centre on such days and at such times as can be facilitated by the said contact centre; and

   (b)As otherwise agreed.

3. The Children communicate with the Father as follows:

   (a)By telephone as follows unless otherwise agreed, with the Father to initiate the telephone calls to the Child [X]’s mobile telephone number:

   (i)Each Monday and Thursday from 5:00pm to 5:30pm; and

   (ii)At such other times as may be agreed.

   (b)By way of card, letter gifts and electronic communication on a reasonable basis.

4. The Mother and Father both be restrained from:

   (a)Consuming illicit substances 24 hours prior to and during all periods of time the Children are in his or her care;

   (b)Denigrating the other to or within the presence or hearing of the Children.

5. The parents submit to urinalysis (under supervision and chain of custody) within twenty four (24) hours of a request by the Independent Children’s Lawyer to the party or their solicitor by letter, facsimile or email, such urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2001: Procedure for the collection, detection and quantitation of drugs of abuse in urine.  A request is to be made no more than once per fortnight with the parent or their solicitor to provide the Independent Children’s Lawyer with the test results within two days of receipt. 

THE COURT FURTHER ORDERS THAT:

1. Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed as a matter of urgency and the Legal Aid Commission of NSW is requested to provide such representation.

2. The parties provide to the Legal Aid Commission of NSW, PO Box K847 HAYMARKET forthwith all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.

3. The matter be set down for a two day Final Hearing commencing

   
   10 November 2011

   at 10:00am.

4. The parties file and serve any further material on which they seek to rely no later than 21 days before the Hearing.

5. The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Magistrates Court Regulations 2000 or as otherwise directed by the Registry Manager by the date of filing of further material.

6. No later than three working days prior to hearing each party forward to my Associate a document setting out:

   (a)The affidavits on which the party will rely at hearing;

   (b)The Orders sought at hearing;

7. The matter be adjourned to 25 July 2011 at 2:00pm for Mention.

8. Leave be granted to the Respondent solicitor to attend by telephone on the next occasion, provided they contact my Associate on [telephone number omitted] or [email omitted] no later than 7 days before the Mention to provide a contact telephone number.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 3682 of 2011

MR PARKINSON

Applicant

And

MS JORKINS

Respondent

REASONS FOR JUDGMENT

1. In the matter of Parkinson & Jorkins I provide the following oral reasons.  This application relates to three children, [X] and [Y], who are 12, and [Z], who is 10.  The applicant is the children’s father.  He is 44 years old, lives in [suburb omitted] and describes himself as a [occupation omitted].  The respondent is the children’s mother.  She describes herself as undertaking home duties and she is 45 and currently living in Melbourne.  Cohabitation commenced in 1994 and the final separation took place on 23 May 2011. 

2. The issues before me basically are where the children should live with their mother, i.e. should they live in Sydney, or should they live in Melbourne, and also what sort of contact should take place with their father.  The father’s application was filed on 17 June 2011 and he seeks orders in effect for the children to live with the mother, but in Sydney, for there to be equal shared parental responsibility, and for him to have contact each alternate weekend and half the school holidays.  His application was supported by his affidavit of 14 June 2011.

3. The mother’s response was filed in Court on 5 July 2011, and the interim orders that she seeks are for sole parental responsibility, for the children to live with her in Victoria and for the children to spend time and communicate with the father one weekend per month at a contact centre in Melbourne.  Her response was supported by an affidavit filed 4 July 2011.  The application and the response to which I have referred set out the competing proposals. 

4. The applicable law is contained in Part VII of the Family Law Act. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides a useful template as to how to deal with these cases, and the Full Court’s decision in Morgan & Miles [2007] FamCA 1230 contains some relevant passages about interim relocation decisions.

5. I will start by considering meaningful relationship.  The evidence of both the mother and the father in their affidavits seem to suggest that the children do enjoy a meaningful relationship with their father.  He contends, in essence, that his proposed orders will secure this meaningful relationship into the future through weekly weekend contact from Friday to Monday, but with the children in Sydney.  I understand the mother’s contention to be that the meaningful relationship will continue through having contact one weekend per calendar month at a supervised contact centre at [omitted], which is a Melbourne suburb, together with telephone calls several times weekly.  I am satisfied at least on an interim basis that both proposals will sustain the father’s relationship with the children, especially given their ages.  The mother’s proposal however, is what I would regard as minimalist in terms of sustaining an ongoing relationship, and if I were minded to grant the orders that she seeks, it would be more likely to be each fortnight if that is something that the father could do.

6. I turn now to the next issue and the issue which I consider to be the major one in this case, and that is that whether there is a need to protect the children from harm.  The mother’s case about family violence and abuse is denied by the father.  The mother’s allegations are very carefully articulated and particularised.  If the mother’s evidence were accepted at a final hearing, the family violence alleged would be of the most serious kind. I accept that the mother’s allegations are corroborated to a limited extent, for example, by the doctor’s consultation notes, the interim intervention order, and the affidavit of Ms D in the care proceedings relating to [A], and in this regard, paragraph 13 of that affidavit indicates that DoCS received a risk of harm report relating to the children on 23 March 2011. Moreover, paragraph 22 deals with the father’s criminal antecedents, a matter to which I will shortly refer.

7. The mother’s allegations against the father are also admitted by him in some discrete ways.  For example, he admits that he is a former heroin addict who is still on the methadone program and he admits that he has some criminal antecedents.  In short, I am satisfied that the mother’s affidavit does raise plausible allegations about family violence and abuse and serious concerns about these issues and the extent to which the children have been exposed to the same. 

8. It is interesting to compare the father’s evidence to the mother’s evidence.  In the affidavit that he filed in support of his application, he tells me nothing about his criminal antecedents.  He doesn’t tell me that he is a former heroin addict now on the methadone program, but curiously, through his Counsel, but not in his affidavit, he asserts that it is the mother who has a problem with drugs and alcohol.  In the mother’s affidavit, she herself admits some issues in relation to drugs, and I note that this admission actually adds to the credibility of the mother’s evidence, whereas the father’s omissions from his affidavit detract from his credibility. 

9. Given that the family violence and abuse is a plausible allegation against the father and it is a most serious issue, it is important at this stage to stop and consider what the Court does not know. The Court does not know the impact of family violence on the mother and her parenting capacity. The Court does not know the impact of family violence on the children. The Court does not know the impact of family violence on the children in terms of their relationship with the father.  These are all matters in respect of which expert evidence is needed.

10. Counsel for the father makes the strong submission that the mother can just as effectively be protected in Sydney as in Melbourne.  Arguably, the submission extends to the children as well.  However, I think this is problematic.  The mother’s capacity to parent is inhibited by returning to a place that she considers to be unsafe.  The mother’s own fears are still there.  Some of the allegations that she makes are so serious as to raise the possibility that neither state nor Commonwealth protective orders will necessarily provide protection for her.  It must not be overlooked that the father’s criminal antecedents do not paint a rosy picture about compliance with the law.  The mother’s concerns are understandable in this regard.  Of course, there is the impact on the children, who for all I know, might be deeply traumatised about returning to Sydney.

11. At the end of the day, this case is an exercise in risk management.  There are risks to the children if they remain in Melbourne.  There are risks to the children if they return to Sydney.  Where is the least risk in a context where evidence is conflicting and nothing more than impressions can be formed?  It is a difficult balancing exercise.  From a purely risk perspective, given that I do not know about the matters to which I have just referred, it seems to me that the least risk lies in leaving the children where they are.  Experience in this jurisdiction teaches one that family violence and abuse casts a long shadow over the lives of those who are affected by it – the perpetrators, the victims, and those who have either actively or passively experienced it, i.e. the children.  But another way of looking at this case is to ask this question:  which situation is easiest to undo at a final hearing?  It must be acknowledged that there is already considerable dislocation in the children’s lives as a result of a unilateral relocation.  To return these children adds to that dislocation.  To then allow them possibly to leave at a later date compounds the dislocation.

12. I intend to expedite the final hearing of this matter to 10 and 11 November 2011.  At a final hearing I will be very careful about giving weight to any submission on behalf of the mother that the children are in a settled environment.  In short, and subject of course, to the evidence, I will have little hesitation in ordering these children to be returned to Sydney at a final hearing if that is what the evidence indicates, but on balance therefore, the situation that is easiest to undo is to let them stay in Melbourne.  I recognise that this decision might seem, at first blush, contrary to the Full Court’s decisions in C & S [1998] FamCA 66 and Morgan & Miles [2007] FamCA 1230, but on closer examination of those cases it becomes clearer that the statements made by the Full Court were never meant to abrogate the best interest principle. The return of the children to their status quo at the time of unilateral relocation is not a principle that universally requires children to be returned. It is but one factor to be taken into account as part of a broader consideration of what is in their best interests.

13. The father may well complain that this decision does in effect make findings against him on the basis of untested evidence, which is the very thing that the Full Court in Goode & Goode [2006] FamCA 1346 says that I should refrain from doing. I am not convinced that this is what the Full Court said, but in any event, interim proceedings are often determined by reference to impressions of the evidence rather than findings. This is a necessity arising out of the very nature of interim proceedings. It is quite frankly, the best that the Court can do on the available evidence.

14. There are other relevant considerations under section 60CC. The children’s views, however, are not relevant at this stage. The nature of their relationship with the father is largely unknown, even though I accept that there is a meaningful relationship. At a final hearing, I am sure that each parent’s willingness to encourage the relationship with the other will be a major issue. I accept that there are issues of practical difficulty and expense if the father is to have contact in Melbourne. I am prepared to take judicial notice of reasonably priced airfares and a high frequency of flights between Sydney and Melbourne.

15. There are issues of parental capacity.  Indeed, they are bound on both sides.  This is particularly the case if either parent is in fact found to have drug and alcohol issues.  If family violence and abuse is found, this will of course go to parental capacity as well as parental attitudes.  I am required to consider parental responsibility.  I am not prepared to make any order about parental responsibility at this stage, and quite frankly, I do not see the need.  The Act requires me to consider substantial and significant time, and given the concerns that I have articulated above, neither is in the children’s best interests or reasonably practicable.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Date:  8 July 2011