RAMZI & MOUSSA
[2021] FCCA 103
•27 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAMZI & MOUSSA | [2021] FCCA 103 |
| Catchwords: FAMILY LAW – Interim hearing – parenting – application for orders requiring mother to return to Melbourne from Sydney – mother unilaterally relocated child’s residence without prior notice to father – father has not spent time with child for 15 months – disputed contentions as to family violence – both parents of limited financial means – expedition of preparation of family report and final hearing – orders facilitating mother remaining in Sydney – orders made for supervised time between child and father. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CC, 67T, 67 U, 67V, 69ZW |
| Cases cited: Goode & Goode [2006] FamCA 1346 Mazorski & Albright (2008) 37 Fam LR 518 |
| Applicant: | MR RAMZI |
| Respondent: | MS MOUSSA |
| File Number: | MLC 12613 of 2018 |
| Judgment of: | Judge M Neville |
| Hearing date: | 19 January 2021 |
| Date of Last Submission: | 19 January 2021 |
| Delivered at: | Sydney |
| Delivered on: | 27 January 2021 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Qureshi of Starnet Legal Pty Ltd |
| Solicitors for the Respondent: | Ms O’Rourke of Legal Aid NSW |
| Solicitors for the Independent Children’s Lawyer: | Mr Holmes of Holmes Donnelly & Co Solicitors |
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
The father’s Application in a Case filed on 16 March 2020 be dismissed.
The father’s Application in a Case filed on 21 November 2019 be dismissed.
Orders 2 – 4 inclusive of the orders made on 30 January 2019 are discharged.
The child, X born in 2017 (“the child”) shall live with the mother.
The child shall spend time with the father on up to two occasions in each calendar month and:
(a)Such time is to be supervised by either of B Contact Centre or C Contact Centre for Children with the father to pay the cost of the supervision; and
(b)The time shall be for two hours on each occasion on days and at times as may be agreed between the parents and failing agreement as nominated by the agency supervising time; and
(c)Such time shall occur at either of D Shopping Centre, Suburb D or E Shopping Centre, Suburb E as is agreed between the parents in writing; and
(d)Each parent shall do all acts and things necessary to commence and complete any intake assessment process required by either or both of B Contact Centre or C Contact Centre for Children.
(e)During any period of supervised time each parent shall do all things necessary to comply with any reasonable direction of the supervisor.
Changeover shall occur with the mother to deliver the child to the supervisor before the commencement of time and collecting him from the supervisor at the conclusion of time after the father has departed the location.
Pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child of the relationship attend upon a Family Consultant nominated by Child Dispute Services on a date and at times to be advised for the purposes of the preparation of an updating Family Report addressing the issues identified in s.60CC of the Act.
The parties send copies of all of their court documents to the Family Consultant within 3 days of being requested to do so by the Family Consultant.
For the purpose of completing a Family Report, the Family Consultant is granted leave to inspect the Court file and all documents produced on subpoena (once leave to inspect has been granted to at least one other party in the matter).
I DIRECT the legal representatives for the parties confirm with the Family Consultant no later than 10 days prior to the scheduled interviews that the interviews will proceed on the dates allocated.
I DIRECT the Independent Children’s Lawyer notify the Family Consultant of the hearing date and request that they be available to give evidence at the hearing.
The Mother is to keep the Independent Children's Lawyer advised of her residential address and her contact telephone number and is to notify the Independent Children’s Lawyer of any change within 48 hours of such change.
The matter be adjourned to 30 June 2021 at 9.30am for mention.
THE COURT NOTES:
A.The Court requests, if possible, that priority be given to the preparation of the Family Report.
B.That upon receipt of the Family Report the matter be expedited for final hearing.
IT IS NOTED that publication of this judgment under the pseudonym Ramzi & Moussa is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Sydney |
MLC 12613 of 2018
| MR RAMZI |
Applicant
And
| MS MOUSSA |
Respondent
REASONS FOR JUDGMENT
X, is four years old. He is the child of the father Mr Ramzi (“the father”) and the mother Ms Moussa (“the mother”). His parents are in dispute about his future parenting arrangements.
The father commenced parenting proceedings in the Melbourne registry of the Federal Circuit Court. The proceedings were transferred to the Sydney registry after X’s mother relocated to New South Wales from Victoria, without prior notice to the father.
On 14 March 2020, the father filed an Application in a Case. That application was listed for interim hearing on 19 January 2021. At interim hearing the father sought orders that the mother return to Melbourne, forthwith; and in the event she did not comply with that order, that a recovery order issue.
The mother opposed that application and instead sought orders that X live with her in Sydney and spend fortnightly supervised time with the father.
At interim hearing, the questions for the Court were:
a)Whether it is in X’s best interests to require his mother to relocate herself and X back to Melbourne;
b)If X remains with the mother in Sydney, what time should he spend with the father and whether it should be subject to any conditions, including supervision; and
c)Whether the final hearing of this matter should be expedited.
Background
Both parents were born in Country F.
The father immigrated to Australia when he was aged around 13 years.
The mother immigrated to Australia following her marriage to the father.
The parties were married in 2003. There are some disputes between the parents in relation to the circumstances of the marriage. The mother contends that at the time of the marriage she was underage and that an arranged marriage was conducted via a proxy without her consent, on the basis of documents that incorrectly stated her date of birth. The father appears to dispute those contentions.
It is, however, uncontroversial that the parties were married in 2003. X, born in 2017, is the only child of their relationship.
The parties separated on a final basis in August 2017. Final property orders were made by consent orders on 30 May 2019 and their present dispute relates to parenting matters only.
X’s mother has been his primary caregiver for the entirety of his life, including both prior to and following the parties’ separation.
From the time of separation until October 2019, X lived with his mother and spent time with his father, albeit the frequency and duration of time varied and time was spent in the presence of or under the supervision of various family members, including the mother.
The father commenced family law proceedings on 31 October 2018 in the Melbourne registry of the Federal Circuit Court.
In his Initiating Application he sought, in broad terms, that orders be made placing X’s name on the Airport Watchlist; that X live with the mother; and that X spend time with the father on a regular basis.
The only risk identified in the Notice of Risk filed by him on that date was that if the mother decided to move back to Country F, X would be at risk.
The mother filed her Response on 12 December 2018. In her Response she sought final orders that she hold sole parental responsibility for X; that X live with her; and that she be given leave to particularise the final parenting orders she sought when a family report had been prepared. On an interim basis, she sought that X spend time with the father supervised at a contact centre or by a qualified supervising service with the cost to be met by the father.
In the Notice of Risk filed by the mother with her Response and Affidavit she contended that X was at risk arising from family violence perpetrated by the father upon her and that the father’s parenting capacity was limited.
The matter first came before the Court on 12 December 2018. On that date each of the parties was legally represented. The Court made interim orders providing, relevantly:
a)That X live with the mother;
b)That he spend time with and communicate with the father on three occasions – 16 December 2018, 23 December 2018 and 30 December 2018 – between the hours of 2.15pm and 5pm on each occasion. Those occasions were to occur at the home of the mother’s cousin, with either but not both of the father’s sister or mother permitted to be in attendance during those visits;
c)That commencing 6 January 2019, X spend time with the father each Sunday from 2.15pm until 5pm supervised by his paternal aunt or his paternal grandmother. The time was contingent upon his aunt and, or, his grandmother providing a written undertaking to the Court that they would fully supervise the father’s time with X and return him to the mother’s care in the event that he became distressed;
The matter returned to court on 30 January 2019. On orders were made for the preparation of a family report and a hearing date was set for 20 April 2020. In addition to those matters, parenting orders were made by consent providing:
a)X continue to live with the mother;
b)For a period of 6 weeks, X spend time with the father each Sunday from 1:15pm until 4:45pm, supervised by his paternal aunt. Those arrangements were to commence upon the aunts providing a written undertaking to the court and changeover would occur inside the Suburb G Library with a paternal aunt present and the father being present, but remaining 5 metres from the mother. The father was to depart the changeover location first;
c)Thereafter, time would occur, unsupervised each Sunday from 12:30pm to 4:30pm and changeover was to occur inside the Suburb G Police Station with the father to remain 5 metres from the mother;
d)The father was to enrol in and complete a men’s behavioural change program;
e)Both parties were to complete a parenting after separation course.
The Court received a written undertaking from the paternal aunt, Ms H on 30 January 2019.
Following the making of those orders, the parties agreed to vary the changeover location to “J Children’s Contact Services” (a supervised contact centre). There was some delay in securing a place at that centre, and supervised changeovers commenced in May 2019.
It is not controversial between the parties that, pursuant to the orders of 30 January 2019, X spent time with the father, although time did not proceed without some difficulties. On some occasions the mother was late, on some occasions she did not attend.
In or around October 2019 the mother ceased facilitating time between X and the father. X last saw his father on 26 October 2019.
On 21 November 2019 the father filed an Application in a Case. By that application he sought orders that X live with him; that X spend time with the mother as agreed between the parties or as otherwise directed by the Court; and that the parents hold equal shared parental responsibility for him.
On 11 December 2019 the father filed a contravention application although it appears that given that a final hearing had been listed to commence on 20 April 2020, he did not press the contravention and did not otherwise press for the hearing of his Application in a Case prior to the final hearing.
In or around December 2019 the mother relocated with X from Melbourne to Sydney. She did not inform the father of her intention to leave, nor did she inform him of the fact that she had gone. The father learned of the mother’s relocation during the family report interviews that occurred on 2 March 2020.
Whilst both parents attended the family report interviews in person, the mother did not bring X to the interviews as she had been requested to do.
On 17 March 2020 the father filed an Application in a Case seeking a recovery order.
The matter returned to court on 19 March 2020 and an interim hearing date was set for 21 April 2020. The Court made orders that the mother take X to the family consultant on 30 March 2020 at 4pm to enable X to be observed with his father. It is not controversial that the mother did not comply with this order.
On 3 April 2020 the matter returned to Court again. The father appeared and was legally represented. There was no appearance by or on behalf of the mother. On that date, the interim hearing of 21 April 2020 was vacated and a further interim hearing date was set for 14 August 2020.
The family consultant prepared her report on 8 April 2020. She was unable to formulate any final recommendations in the absence of observing X with each parent.
On 14 August 2020 the father appeared, legally represented. The Court file indicates that whilst contact was established with the mother via a mobile telephone number, the call was disconnected. A second call placed to her by the Court went through to voicemail. The Court then made orders transferring the matter to the Sydney registry of the Federal Circuit Court of Australia for hearing on a date to be advised.
The Court requested an expedited listing of the matter given that it was considered by the judge to be impacted by COVID-19.
The matter was first listed in the Sydney registry on 19 October 2020. On that occasion the matter was called in the morning. There was no appearance by or on behalf of the mother. After hearing from the father’s legal representative, it was stood down so the Court could try to attempt to contact the mother with the assistance of a Country F interpreter.
When the matter was re-mentioned in the afternoon, the court telephoned the mother with an interpreter on the call. Orders were made adjourning the matter to 16 December 2020. An Independent Children’s Lawyer (“ICL”) was appointed. Orders were made pursuant to section 69ZW requiring the New South Wales Department of Communities and Justice and the New South Wales Police Force to provide documents to the Court. The mother was directed to file and serve an Amended Response and Affidavit by 1 December 2020.
When the matter returned to Court on 16 December 2020 each of the parties appeared, legally represented. The ICL had been appointed and appeared. Orders were made referring the matter for a Child Dispute Conference on 16 April 2021.
A very short adjournment was granted to 21 December 2020 to allow the father time to consider whether he wished to press his application for a recovery order.
On 21 December 2020, the father informed the Court he wished to press his application for a recovery order. Accordingly, that application was listed for interim hearing on 15 January 2021 and directions were made for the filing and service of evidence.
On 15 January 2021, given the volume of applications before the court the matter was not reached. It was, therefore, adjourned and the interim hearing was conducted on 19 January 2021.
Applicable legal principles
Section 67T of the Family Law Act 1975 provides that an application for a recovery order may be made by, relevantly, a person with whom the child is to spend time under a parenting order.
The court’s power to make a recovery order lies at s 67U which provides that the court may, subject to s 67V, make such recovery order as it considers proper.
Section 67V requires the court to regard the child’s best interests as the paramount consideration when deciding whether to make a recovery order.
A child’s best interests are determined by a consideration of the factors set out at s 60CC of the Act. At an interim stage, the court considers those factors that are relevant on the interim dispute.
An interim hearing is an abridged process with a curtailed scope of inquiry. As was observed in Goode & Goode [2006] FamCA 1346, the Full Court said at [68]:
The procedure for making interim parenting orders will continue to be an abridged process where the scope of inquiry 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.
In interim proceedings this court frequently grapples with evidence relied upon by parties where there are little, if any, agreed facts and where almost everything is in dispute. This is particularly so where one or both parties contend that the other has engaged in behaviour that places a child at risk. Routinely, such contentions are vigorously and robustly denied by the other party. Having regard to the manner in which interim applications are to proceed, this can create a challenge for the court deciding on parenting arrangements on an interim basis.
The authorities are clear, however, that the court cannot simply set competing allegations to one side as being impossible to resolve on an interim basis. The court is required to grapple with an assessment of risk even where there are little agreed facts and almost everything is in dispute.
In relation to dealing with allegations of family violence or contentions that a child is at risk of harm in the care of a parent at an interim stage, the majority of the Full Court (Boland and Thackray JJ), observed in SS & AH [2010] FamCAFC 13 observed as follows:
Apart from relying upon the uncontroversial or agreed facts, 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 when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Although the mother seeks no order for relocation, it is implicit in her application that she seeks to remain in New South Wales with X. Prior to her unilateral relocation his residence was in Victoria.
Where an application is made for relocation the court is guided by the principles set out in Morgan and Miles [2007] FamCA 1230:
“79. In considering whether the child should live with the parent who proposes to relocate a court:
· Must be satisfied that the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
· Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
· Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
· If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
· In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
· When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
· Will careful (sic) weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
· Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.”
In her case outline document, the mother’s legal representative observed the comments of Bryant CJ and Warnick J in the decision of Sampson & Harnett(No 10) [2007] FamCA 1364 (at [58]) as follows:
“In a parenting case an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will be superfluous. If the evidence does not support such a finding the order will be coercive in nature and equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing”.
The applications and the documents relied upon
The father
The father sought orders as follows:
(1) That the respondent mother forthwith relocate with the child to Melbourne, Victoria; and
(2) In the event that the mother does not comply with the order requiring her to relocate, that a recovery order be issued for the recovery of X to the father’s care.
In support of his application, he relied upon:
a)Application in a Case filed 21 November 2019;
b)Application in a Case filed 16 March 2020;
c)Affidavit of the father affirmed 19 November 2019;
d)Affidavit of the father affirmed 14 March 2020;
e)Affidavit of the father affirmed 12 January 2021; and
f)Affidavit of Ms H affirmed 11 January 2021.
The father’s legal representative had prepared a case outline document to which was of assistance to the court.
The mother
The mother sought orders as follows:
a)Orders 2 to 4 made on 30 January 2019 be discharged;
b)X spend time with the father for two hours each alternate week supervised by a professional supervisor at a location near the Sydney Airport as arranged between the parents and the supervisor and:
i)The father pay the cost of the supervision;
ii)Each parents is to do all things necessary to comply with the reasonable requirements of the supervisor;
iii)The mother shall deliver the child to the supervisor before the father attends the location of the time and collect him after the father has left the location at the conclusion thereof.
At the commencement of the interim hearing, through her legal representative, the mother refined the orders she sought so as to specify that the location of time between X and the father would be at E Shopping Centre and that time would be supervised by either of B Contact Centre or C Contact Centre for Children.
In support of her application, the mother relied upon:
a)Notice of Risk filed 12 December 2018;
b)Affidavit of the mother filed 11 December 2020; and
c)Affidavit of the mother filed 14 January 2021.
In addition to the mother’s affidavits, and with notice to the parties, I had regard to the Amended Response filed by the mother on 11 December 2020.
The mother also relied on documents tendered from the material produced by the New South Wales Police Force under the order made pursuant to s 69ZW.
The mother’s legal representative had prepared a case outline document in accordance with the directions previously which was of assistance in the hearing of this matter.
The ICL prepared a case outline document which was of great assistance in understanding the chronology of the matter and the manner in which the parties’ competing contentions may impact upon X.
Whilst the ICL did not prepare a formal minute of order, his primary application was that the matter be expedited. His position in relation to the parenting arrangements was expressed to be contingent upon the outcome of that application:
a)In the event that expedition be granted, he supported orders that:
i)The mother and X remain living in Sydney pending further order;
ii)The interim orders of 30 January 2019 be discharged; and
iii)X spend time with the father for six occasions initially supervised by Ms H and thereafter to be unsupervised and to occur each Sunday from 12.30 pm to 4.30 pm with changeover to be facilitated by a commercial supervision service.
b)In the event that an expedited hearing was not granted, the ICL sought orders that:
i)A recovery order issue as sought by the father;
ii)The matter be transferred to the Melbourne registry of the Federal Circuit Court; and
iii)The father recommence spending time with the child supervised for a period of six weeks by Ms H each Sunday from 12.30 pm until 4.30 pm with changeover facilitated by a community supervising service. Beyond those matters, he supported the balance of orders made on 30 January 2019 remaining in effect pending final hearing.
Although it was not articulated in the statement of the ICL’s position in his Case Outline Document, in the course of submissions, the ICL observed that if X was to move into his father’s care, it would need to occur over time and in a series of stages given the time that has passed since X last spent time with the father.
The ICL relied upon:
a)The Family Report of Ms K of 8 April 2020.
b)The orders of the court of 12 December 2018; 30 January 2019; 19 March 2020; 3 April 2020; 14 August 2020 and 19 August 2020.
The competing contentions
The father contends that the mother unilaterally relocated X’s residence from Victoria to New South Wales without notice to him. In doing so, he contends that she has wilfully and deliberately disobeyed court orders that provide for time between X and the father and that the impact of this on X is unknown.
He contends that the mother’s compliance with the various interim orders that were made in the proceedings has been wanting – that she was frequently late to changeover and insisted on supervision continuing in circumstances where he contends it was not required. Notwithstanding this, he agreed to further supervision and he further agreed to vary the changeover location to suit the mother’s convenience.
His position is that X is presently being deprived of time and communication with the father and with his extended paternal family members.
He does not seek orders that X immediately move into his primary care. Rather, he seeks first that the mother be required to return to Melbourne and that time resume in accordance with the orders of 30 January 2019. He seeks that a recovery order issue in the event that the mother does not return to Melbourne with X.
The mother contends that she and X are presently well settled in Sydney. She wishes to continue to primarily care for X in Sydney. She does not expressly seek an order permitting her to relocate to Sydney, New South Wales, although this is implicit in the orders she seeks. Whilst she accepts that the court has the power to make a coercive order requiring her to live with X in Melbourne, she contends such an order is not in X’s best interests.
The mother contends that the father has perpetrated coercive and controlling family violence upon her and that she is frightened to return to Melbourne where she has no support and knows few people.
Insofar as the father seeks a recovery order issue, the mother contends that as X has never been in his father’s primary care and has, since separation, spent only limited time with him, such an order represents a drastic change in X’s circumstances and is likely to cause serious trauma to him in the short and long term.
The ICL aptly identified the difficulties in the parties’ competing contentions:
a)The father’s application for the mother to return to Melbourne forthwith was difficult in circumstances where the mother was of limited means and had no accommodation for herself of X and would require a degree of planning before it could be implemented. He envisaged that such a move would take at least 3 months to complete. In the event she did not move forthwith, then the recovery order sought by the father would represent a tremendous change in X’s circumstances and it was simply unknown as to how X would adjust to living with a father he has not seen or communicated with for 15 months.
b)The mother’s application sees her benefitting from the unilateral decision she took to relocate – without notice – to Sydney. Notwithstanding court orders, X has spent no time with the father for 15 months and the impact on their relationship is profound. Further, he contended it was difficult to reconcile the mother’s interim application that X spend supervised time with the father, with the mother’s ultimate application that X spend not time with the father.
The ICL’s position was that the matter ought be expedited so that there can be some certainty as to X’s parenting arrangements.
In the event that an expedited hearing can be granted, then the ICL contends it is in X’s best interests that X remain in Sydney. As was observed by the ICL, it appears that the mother wishes to remain here. She is a woman of modest means and in the event final orders were made sanctioning her remaining in Sydney, it would be disruptive to require her and X to return to Melbourne and then to return back to Sydney.
In the event that the final hearing cannot be expedited the ICL expressed concern that the relationship between X and the father will, realistically, become estranged. There is little evidence that either parent can afford interstate travel to facilitate time between X and if a final hearing in the Sydney registry was some years away, then X should return to Melbourne, otherwise there would be no prospect of a relationship with his father.
Determining what is in X’s best interests
At an interim stage, in determining a child’s best interests, the court considers those matters at s 60CC that are relevant to the parenting dispute.
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with each parent; and
b)The need to protect the child from physical or psychological harm from being exposed to abuse, neglect or family violence.
Section 60CC(2A) requires the court to give greater weight to the need to protect a child when applying the primary considerations.
In addition to the primary considerations, I consider the following factors set out at s 60CC(3) to be relevant to the present dispute:
a)The nature of X’s relationship with his parents and other persons;
b)The extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation X, spend time with X and communicate with X.
Meaningful relationship
With the mother
The father’s primary application envisages that X will remain in the mother’s care, but that she provide that primary care to X in Melbourne. It is only in the event that the mother fails to return to Melbourne that the father seeks orders that X be recovered to the father’s care.
The mother contends she has been X’s primary carer and wishes to continue in that role.
Having regard to the parties’ respective positions in this regard, there is no apparent dispute that X’s relationship with his mother is significant, important and valuable to him.
With the father
It is clear that the father has sought to develop and maintain his relationship with X. He has pursued court proceedings and has sought orders for time and communication with him.
During the course of the family report interviews, the father was reported to have described X as a child who loves to laugh, who is loving and caring, who loves ice cream and speaks in English as well as in Country F – that he could put a few words together.
The paternal aunt, Ms H gives evidence of her observations of the father attending to X’s needs engaging with him and interacting with him during the periods she supervised time.
There is no doubt that from the father’s perspective, the relationship between himself and X is meaningful.
The mother’s position is that, on an interim basis, X spend time with the father once each fortnight, in Sydney, supervised by a professional contact supervision service. On a final basis, however, she seeks orders that X spend no time with the father. It is, in the circumstances, difficult to discern the mother’s position in relation to this s 60CC factor.
In interview with the family consultant, the mother was reported to have stated her understanding that the father has a right to see X and X has a right to see his father.
Following separation, the mother facilitated time between X and the father – albeit not without difficulty – until October 2019. In her affidavit, she deposes to having felt pressure from the local Imam, members of her family and members of the Country F community to facilitate time between the father and X.
Beyond these matters, however, her position is not clear and there is little to indicate whether she considers that there is benefit to X in having relationship with his father but that such benefit is outweighed by the need to protect him, or, rather, whether there is no benefit to X in having a meaningful relationship with the father.
Assessing whether – from X’s perspective – there exists a meaningful relationship with the father is a difficult task. The parents separated in September 2017 when X was just 6 months old. Whilst the parents’ relationship was intact, the father worked outside of the home and so opportunity for interaction between him and X was limited.
X’s time with his father following separation was limited to weekly time for a few hours on each occasion. Since October 2019 there has been no time at all. Again, X’s opportunity to form and enjoy relationship with the father has been limited.
The Family Consultant was hampered in her ability to assess the relationship between X and the father because X was not brought to the family report interviews and the family report does not assist in assessing this factor.
Generally, it is in a child’s best interests to have relationship with each parent. This is recognised in the Objects of Part VII of the Act which provide at s 60B(1)(a) that, inter alia, the objects are to ensure that the best interests of the child are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child. It is also recognised in the principles underlying the objects which provide at s 60B(2)(a) and (b) that children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together; and children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development.
A “meaningful relationship” is one that is important, valuable and significant to the child. It has been described as a qualitative, rather than a strictly quantitative concept (see Mazorski & Albright (2008) 37 Fam LR 518; [2007] FamCA 520).
In McCall & Clark [2009] FamCAFC 92, the Full Court expressed preference for a prospective approach when undertaking the inquiry into the benefit to the child of having a meaningful relationship with both parents, saying (at [118] – [119]):
“…the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents.”
Given the time that has passed since X has seen the father, and given his young age, it is difficult to see how X would have significant memories of his father and at this point it is difficult to see how – from X’s perspective – there is any relationship at all.
All parties agree, however, that X’s time with the father should resume on an interim basis and so, having regard to the objects and the principles of the Act as set out above, and having regard to the parties’ positions I consider on an interim basis, that there is benefit to X in having a meaningful relationship with his father.
Need to protect the child
The mother contends – and the father denies – that she has experienced family violence by the father both during the relationship and following the parties’ separation.
I observe that the father has – in the past – contended that the mother has engaged in family violence upon him. He made application to the Magistrates’ Court in Victoria for a family violence order against the mother although this was ultimately not pursued by him.
To the extent that the father has alleged that the mother engaged in family violence upon him, it is not a matter he pursues at this interim stage of proceedings. He does not seek that X live with him unless the mother fails to comply with an order that she return to Melbourne and so I have proceeded on the basis that, from the father’s perspective, he does not consider that there is a need to protect X from physical or psychological harm from being exposed to abuse, neglect or family violence in the mother’s care.
As for the mother’s contentions about family violence, at this interim stage it is not possible to resolve the parties’ competing contentions. The court is no position to make findings of fact. As noted earlier, however, where family violence is raised as a matter that impacts on X’s safety, welfare and wellbeing, the court cannot simply set the contentions to one side as being impossible to resolve within the confines of an interim hearing. This is especially so where the mother contends that her resistance to returning to Melbourne is due, in part, to fear of the father.
Where findings are not possible, I do not consider it helpful to recite, in detail, each instance of family violence alleged by the mother. In broad terms, however, she contends that during the relationship she experienced family violence by the father including:
a)Social isolation from family and friends by the father requiring her to obtain permission to speak with people or requiring her calls with her mother to be on speaker phone;
b)Restrictions on her access to learn English;
c)Being denied access to money including her own wages;
d)Being restricted in her capacity to buy food for herself including during her pregnancy;
e)Sexual assault on a number of occasions;
f)Physical assault on a number of occasions including, but not limited to, kicking her to the stomach during her pregnancy.
She contends that at the time of separation, the father damaged property including smashing plates, smashing her mobile telephone and kicking household items. She deposes that this behaviour caused her to feel fearful and she told the father she would call the police. X was present throughout and she contends that he was in her arms and crying in distress.
The mother contends that following separation whilst she was living in Melbourne, the father moved into a residence two doors down from her home and began to stalk her. She sought and received assistance to install CCTV devices at her residence.
The mother’s account of family violence contained in her affidavit is a detailed one. If her contentions are accurate, then the behaviours she complains of – both prior to and following separation – fall within the definition of family violence at s 4AB of the Act.
The mother further contends that in recent times she has received contact from a social media account and, or, a mobile telephone number in the name of the father’s brother. The communication contains foul and abusive language and threats to her safety if and when she returns to Melbourne.
As noted, the father vehemently denies the mother’s allegations. He contends that he has not engaged in the behaviour the mother deposes to.
Insofar as the mother contends that she has, in recent times, received social media communication from the father’s brother threatening her, it was submitted for the father that:
a)He has no knowledge or awareness of those threats and in the event they were, in fact, made he is not responsible for them;
b)His brother is presently overseas; and
c)The copy of the communication annexed to the mother’s affidavit includes threatening comments sent by the mother herself.
I observe that on inquiry by the court, the legal representative for the mother confirmed that the mother had sent messages that contained threatening comments to the account held in the name of the father’s brother.
As was observed by the Family Consultant, if the mother’s contentions are accurate, it would raise concerns about X spending time with the father. If they are inaccurate, it would raise serious concerns about the mother’s motivations for making such an allegation.
The father submits that the court would not place weight on the mother’s contentions as to family violence in circumstances where:
a)There is no independent evidence before the court to support the allegations; and
b)The allegations predate the interim orders made by the court in Melbourne.
To the extent that it was submitted for the father that there is no independent evidence before the court to support the mother’s allegations, this is, strictly speaking, correct. There is no evidence that the father has been convicted of a family violence offence. Nor is there an affidavit or statement from a witness who saw or heard family violence perpetrated by the father as the mother contends.
The absence of an eyewitness account or the absence of a criminal conviction does not – in and of itself – allow the court to dismiss contentions about family violence. As was observed by the Full Court in Salah & Salah [2016] FamCAFC 100, “family violence often takes place in private in circumstances where no corroboration is available” (at [43]).
Further, whilst there is no eyewitness account available, this does not mean that there is no evidence to corroborate the mother’s account of having reported family violence.
The mother deposes that she reported family violence to Victorian Police; to the Department of Health and Human Services and to Safe Steps Family Violence Response Centre.
The records in evidence inform that:
a)During the course of her pregnancy with X, the mother informed social workers and antenatal care staff that the father had hit her across the stomach.
b)On 16 November 2016, Region L Health (where the mother apparently attended for antenatal health care) prepared a Client at Risk Management Plan for the mother which included a report to child protection services and a referral to “Safe Steps”.
c)On 1 September 2017, the mother made contact with Safe Steps – having previously dealt with the service at the end of 2016 – and crisis accommodation was provided to her and X. The service observed that the mother had identified experiencing family violence from the father including physical abuse.
d)On 2 September 2017, the Victorian Department of Health and Human Services, Child Protection, received a report about concerns of family violence perpetrated by the father upon the mother to which X had been exposed. Both parents were interviewed. The father denied the matters raised in the report. The Department was in support of a “full intervention order prohibiting the contact of the (the father) due to the likelihood of ongoing significant emotional harm, and likelihood of physical harm”.
e)On 18 October 2017 the mother made a report of family violence giving rise to an application for a family violence order against the father and on 8 January 2018 “further and better particulars” were provided in support of that application.
f)After a number of interim family violence orders were made against the father for the mother’s protection, the Magistrates’ Court at Melbourne made a final family violence order against the father for the mother’s protection on 12 September 2018 for a period of 7 months.
g)On 31 May 2019, the Australian Muslim Women’s Centre for Human Rights received a report from the mother about family violence and assisted her to install CCTV cameras to her home through a family violence package.
It was put for the father – and I accept – that all of the above reports and, or, interventions were based on the mother’s report to external agencies. I observe, however, that the reports that are detailed above are contemporaneous and are historically consistent with some of the matters that the mother currently raises.
Further, it is difficult to ascertain the motivation the mother would have to falsely report family violence some 3 – 4 years ago prior to X’s birth.
To the extent that most of these matters pre-date the making of interim consent parenting orders, I observe that whilst this is chronologically correct it does not lead to a conclusion that family violence did not occur, nor that the mother was not concerned about it when the interim parenting orders were made. It is not controversial that the mother sought supervision of the father’s time with X throughout the early stages of the family law proceedings and, by agreement, it appears that supervision continued beyond what was required by court order. The parenting arrangements appear to have broken down, and the mother appears to have relocated, at or around the time that it became apparent that there would be no further agreement to supervision of time.
I observe that it is curious that where the mother contends that she has experienced family violence by the father, and where she has received abusive and threatening messages from his brother that she would send a threatening message to the brother. There is no explanation for this in the evidence on this interim application. Her action does not, however, mean that the evidence of the abusive messages sent to her must be rejected. Rather, it forms one part of the material before the court on this interim application.
When weighing the probabilities of the parties’ competing claims about family violence, I place weight on the records described at paragraph 117 above because they demonstrate that the mother made complaint about family violence to external organisations both prior to and after the commencement of these proceedings, and because they demonstrate that those external organisations were concerned for the mother’s safety.
Having regard to the totality of the evidence, whilst I cannot find that family violence has occurred, I am unable to exclude the possibility that the contentions made by the mother as to family violence are accurate – in part or in whole, notwithstanding the father’s denials.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative child)
X’s relationships with his parents have been canvassed earlier in these reasons and I incorporate the matters detailed in the consideration of the benefit to X of having a meaningful relationship into consideration of this particular factor.
Beyond his parents, it appears from the father’s evidence that X has many extended family members in Melbourne.
The father gives evidence that he lives with his parents – X’s paternal grandparents. X has aunts and uncles, and 14 cousins in Melbourne.
Ms H deposes that when X was spending time with the father, that the entire paternal family would ensure that they also spent time with him. Ms H’s 3 children have all met and spent time with X.
The mother’s decision to cease time between X and the father, and her unilateral decision to relocate has meant that X has now not seen or communicated with his extended paternal family members since October 2019.
Again, it is difficult to envisage that X would have close or enduring relationships with extended family members he last saw when he was aged around 2 ½ years.
In addition to his extended paternal family members, the father has remarried and he and his new partner have a child, M, born in 2020. The father informed the family consultant that his partner met X in 2019 when the father was still spending time with X. X has not met his brother. It cannot be the case that X could be considered to have a relationship with the father’s new partner or his brother.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with child
There is no doubt that the father has sought to have involvement in X’s life. He appropriately pursued family law orders when parenting arrangements could not progress by negotiation between himself and the mother.
It is also beyond doubt that once it became apparent in October 2019 that the mother was not facilitating time, the father filed an Application in a Case at the earliest opportunity, followed up by a Contravention Application. When – during the family report interviews – it became apparent that the mother had relocated to New South Wales, the father acted promptly to file an application for a recovery order.
It was submitted for the father – and I accept – that the delay in having these applications heard is not the fault of the father. Furthermore, to the extent that X has not spent time with the father since October 2019, this does not arise due to any delay, lack of trying or disinterest on his part.
Section 60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The father’s proposal
The orders proposed by the father would require the mother and X to depart Sydney and return to Melbourne. As he does not seek a discharge of the orders of 30 January 2019, it appears that he expects that once she has returned, X will resume spending weekly time with him, or – as was submitted by his legal representative – there would be further judicial determination on the issue.
It is not clear from the father’s application whether he envisages that there would be any period of supervision by extended family members.
In the event that the mother did not comply return with an order to return to Melbourne then, on the father’s application, X would be recovered to his care. The father did not articulate any detailed proposal for time or communication between X and the mother in those circumstances.
As noted earlier in these reasons, X has lived in his mother’s primary care for all of his life. He has been living in Sydney now for over 12 months. In August 2020 he commenced at a childcare centre in proximity to the mother’s residence and is presently enrolled 2 days each week.
Where X has not been observed or assessed by the Family Consultant, it is very difficult to assess the impact on X if he was to return to Melbourne as the father seeks, even if he were to remain in the mother’s primary care.
Further, it is difficult to know how X would respond and or be affected by a resumption of time with his father and it is difficult to know what supports might be provided to enable the relationship to resume in a manner that would best support X to feel safe and supported.
There is no evidence to guide the Court as to the impact on X if a recovery order was issue and X moved from the mother’s primary care into the father’s primary care. Having regard to the fact that X has not spent time with his father for about 15 months, and that he has not lived in the same household as his father since September 2017 (when he was 6 months of age) it is reasonable to assume that such a change would be a profound one for him. It would represent a total upheaval of the life he has known to date. He would be separated from the mother – his primary caregiver – and would live with the father whom he has not seen for 15 months.
As noted earlier, the father has remarried and he now has a son, M. It appears that if X was to move from his mother’s primary care into his father’s primary care, that in addition to living with the father he would also live the father’s new wife and their child. Whilst the father informed the family consultant that X has met his partner, it appears likely that X would have little if any memory of her, and he has not met his brother M. A move to his father’s primary care would mean he would go into a household of people he does not know well – or at all.
The extent to which X would cope with a change from his mother’s primary care to his father’s – were it to be required – is unknown. The extent to which the impact of such a change might be ameliorated by time or communication with the mother is also unknown.
The mother’s proposal
The orders sought by the mother would see X continue to live in Sydney with her. She proposes that X spend fortnightly supervised time with the father. This would mean that after a separation of 15 months, X and the father would have the opportunity to commence to spend time together again.
The mother’s proposal is, however, not as straightforward as it may appear at first. The evidence indicates that the cost of travel between Sydney and Melbourne on a fortnightly basis is prohibitive for the father. In addition to this difficulty, the mother seeks the father meet the cost of professional supervision. It appears that the parties’ respective financial positions may preclude such time from occurring, even if it were ordered.
Further complicating the issue is the impact of the COVID-19 pandemic and the changeability of travel restrictions between the Australian states as the country struggles to respond to the pervasive nature of the coronavirus. In recent times, travel between Sydney and Melbourne has been restricted and, where it has been possible, there have been strict quarantine requirements for people entering Melbourne from Sydney.
In addition to these complications, it appears that the father considers the regular travel proposed by the mother to spend time with X may impact on his obligations as a father to M.
Whilst on its face, the mother’s proposal would open the door to a resumption of the relationship between X and the father the above matters may render it a door that cannot be stepped through.
If that is correct, then there is a real possibility that there will be no change to X’s circumstances on the mother’s proposal.
Section 60C(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The fact that the parents now live in separate States raises a real question as to the practical difficulty and expense in X spending time with the father if one of them does not move closer to the other.
In the financial year ending 30 June 2020, the father earned income of $21,740 working as a transport worker. In submissions and on instruction, his legal representative informed the court that his income is likely to be less in the present financial year due to the impact of the COVID-19 pandemic and the anticipated reduction in the availability of government financial assistance.
The father is presently engaged in a Bachelor’s course. The course fees are $120,000 although apparently he is entitled to some form of government fee assistance and a deferral of repayment of any fees until he is earning income from the qualification.
I understand that the mother is studying to obtain a Certificate III and is due to complete the course by February 2021.
The mother is not presently working and is in receipt of a Centrelink benefit. She rents the apartment in which she and X live and pays other costs associated with her own and X’s care.
The property orders entered into between the parties in May 2019 provided for a house apparently owned by the one or both of the parties to be sold and the net proceeds of sale be applied such that the mother receive $50,000 and the father receive the balance. The evidence does not disclose whether the sale of the home has occurred nor whether any payment has been made to the mother.
It appears to be the case that neither party can afford to fund regular travel between Sydney and Melbourne to facilitate time between X and the father in the event that the mother remains living in Sydney.
If it is the case that both parties live in the same city, the costs of travel are unlikely to be prohibitive. However, it appears that there would be significant costs associated with a move back to Melbourne for the mother and that it is a process that is likely to take some time. She would need to secure rental accommodation in Melbourne at a price she can afford on a very modest income. There would be further costs associated with transporting any possessions she has interstate.
In the course of the interim hearing, the court became aware that the father apparently owns a residence in Melbourne. Whilst this may have been a place where the mother and X could live (putting aside for present purposes any questions about the mother’s willingness to do so given her contentions as to family violence) on instruction the father’s legal representative informed the court that there are presently friends or family members residing in the home, although in accordance with his culture, the father does not derive rental income from them.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents, and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child including emotional and intellectual needs.
The mother’s actions in unilaterally relocating to Sydney with X raise some significant concerns about her parenting capacity. She took steps to relocate in the face of court orders providing for time between X and the father, whilst proceedings were on foot.
Further, notwithstanding that there were court orders that she facilitate time, she unilaterally ceased to comply with those orders and took no step to seek a variation to them.
The mother’s compliance with court orders has been a source of frustration for the father. He annexed to his affidavit of 12 January 2021 a letter from J Children’s Contact Centre of 23 October 2019. That letter indicates that on 22 June 2019, the mother was sent a “first warning” letter for breaching the service user agreement on several occasions by either arriving substantially late, missing scheduled visits without prior notice or cancelling visits on less than 45 minutes notice.
The letter further indicates that between July 2019 and October 2019, the mother was late to drop off or collect X on a number of occasions. In some instances, the delay was in the vicinity of 6 – 12 minutes. On two occasions, however, it was in the vicinity of 30 minutes, on one occasion it was 65 minutes, and on 3 occasions, the mother did not attend and was unreachable.
I place little weight on those instances where the delay was in the vicinity of 6 – 12 minutes. Whilst it was submitted for the father that where a visit lasts such a short time, that 6 – 12 minutes represents a significant time for the father, I observe that the mother was reliant on Uber or taxis to get herself to and from the contact centre.
The reasons for the more extensive delays are, however, unexplained by her and indicate that the mother may have a difficulty observing the requirements of court orders.
The occasions where the mother was late to the contact centre and where she did not attend at all are likely to have had some degree of impact on X’s relationship with his father. Her decision to cease facilitating time in October 2019 and her unilateral decision to relocate without notice to the father or to the court have had a profound impact on X’s relationship with the father.
Further, they have eroded any degree of trust that may have existed between these parents.
In addition to the impact her actions have had on X’s relationship with the father, where the father does not appear able or willing to move to Sydney and the mother does not appear able or willing to return to Melbourne, significant uncertainty arises for X’s future parenting arrangements and there is a potential for disruption for further disruption for him.
These matters raise questions as to the mother’s parenting capacity. Her reasons for her actions are yet to be fully understood or determined.
Insofar as the father seeks a recovery order in the event the mother is ordered to return to Melbourne but does not, there is little evidence as to his capacity to care for and meet the needs of a 4 year old child who – in effect – does not know him.
There is very little evidence from the father as to his relationship with his child M and the involvement he has caring for his infant child. Whilst in interview with the family consultant he was able to describe X’s personality and characteristics in very positive terms, these are all based on his interactions with X 15 months ago.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Each of the parents was born in Country F. The father deposes that he is a Muslim and that his faith is important to him and that he wishes to ensure that X has the opportunity to know and experience his religious and cultural background.
Whilst religious and cultural matters are important I consider that they are not significant in the determination of this interim dispute, but accept that they may take on greater significance at final hearing.
Section 60CC(3)(j) any family violence involving the child or a member child’s family
I have canvassed the competing contentions in relation to family violence earlier in these reasons and incorporate the matters detailed in the consideration of the need to protect X from physical or psychological harm arising from exposure to abuse, neglect or family violence into consideration of this factor.
Section 60(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order:
(iv) any findings made by the court hearing, or in proceedings for, the order
(v) any other relevant matter
Family violence orders against the father
As noted earlier in these reasons, a family violence order was made against the father for the mother’s protection on 12 September 2018. The order was made with the father’s consent and without admission by him. There was no contested hearing on the merits. That order was made for a period of 7 months, expiring on 15 April 2019.
On 22 May 2019, the order was, apparently, extended by the Magistrate’s Court at Melbourne. It is in force until 22 May 2024. It was made in the absence of the father and I infer that there was no contested hearing of the application on the merits. The notations on the copy of the order that is annexed to the mother’s affidavit indicate the following matters:
a)The father was served with a copy of the application and summons;
b)The father was not present at the hearing; and
c)The father did not agree to the order being made.
The orders in place against the father prohibit him from, inter alia, going within 200 metres of the mother’s residence and any place X attends childcare.
On or around 23 March 2020, an interim Apprehended Violence Order was made by the New South Wales Local Court at Suburb N against the father. X is named as a protected person on that order. That order appears to have been made on a final basis for a period of 1 year, 11 months and 28 days on 6 April 2020. The complaint giving rise to that application is not in evidence.
The order was, apparently, made in the absence of the father. On instruction, the father’s legal representative informed the court that the father was unaware of the application until after the order had been made on a final basis.
Application for family violence order against the mother
On 19 December 2018, the father made application for a family violence order against the mother to the Melbourne Magistrates’ Court. His application and summons included contentions that the mother had sent him abusive and threatening messages to the effect that he does not deserve to see his son; that he was lucky she did not take him to prison; and that she has sent hundreds of messages sent to harass him. Additionally, he contends that in 2016, the mother threw household items at him and hit him with a perfume bottle whilst he was driving.
It is not controversial that the father did not pursue that application. In submissions, the father’s legal representative informed the court that the application was a “cross-application”.
There is no evidence that there is presently a family violence order in place against the mother.
Discussion
The father contends that the mother has wilfully and deliberately disobeyed Court orders that require her to facilitate time between himself and X. As best I can work out, it is his contention that she has done so in order to thwart the relationship between himself and his child.
The primary orders that the father seeks require the mother to return to Melbourne with X “forthwith”. In the event that does not occur, then he seeks a recovery order issue.
It was submitted for the father, and I accept, that it would have been difficult for him to press a “live-with” application in circumstances where X has not seen or spent time with him for approximately 15 months and where, given X’s young age, it is unknown whether X would recognise or have any memory of his father.
It was the father’s position that the Court should determine the issue as to where the mother and X would reside on an interim basis, before determining the time arrangements between X and the father. Notwithstanding that position, he did not seek a suspension of the orders of 30 January 2019.
The consequences of making an order requiring the mother to relocate to Melbourne with X “forthwith” as sought by the father are significant.
A move between States – especially during a pandemic – is one which requires organisation and planning. It appears that an order requiring the mother to return to Melbourne “forthwith” would be one that it would be impossible for her to comply with, especially in circumstances where she has no accommodation in Melbourne and no apparent support network other than a cousin she has not seen for some time and the father and his family.
It would appear that the mother is presently in receipt of Centrelink benefits for her income and she receives very modest child support from the father. As best I can work out, she has been assisted by community organisations to secure the rental accommodation in which she presently lives. I am unaware as to the amount of rent she pays each week. However, it was submitted on her behalf that she is a person with a modest income and very limited savings in the bank.
Were the mother to return to Melbourne, she would face significant costs associated with moving. She would be required to pack up the premises in which she presently lives, to fund travel for herself and X from Sydney to Melbourne. She would be required to secure new accommodation in Melbourne and, in effect, to set up a new household there.
Whilst the father contended that there was no evidence that the mother had taken any step to reach out to community organisations in Melbourne that had previously assisted her, it would appear that, in the past, the urgent and/or immediate assistance that the mother has received in relation to her accommodation from such organisations has been placement into refuge accommodation. Whilst refuge accommodation is an invaluable resource, it is often accommodation that is subject to availability, short term and involves living in shared facilities.
There is no evidence to establish that the mother can access community organisations in Melbourne and, even if she could, whether she could secure anything other than short term refuge accommodation.
The obvious question that arises in that event, is what happens at the end of any community based refuge accommodation.
The mother’s financial circumstances do not readily lend themselves to moving back to Melbourne and securing private rental accommodation. There is no proposal by the father to provide financial or housing support to the mother. But even if there was, having regard to the mother’s contentions as to family violence, it is difficult to envisage that she would feel safe and, or, comfortable in living with accommodation provided by the father.
Clearly, there are practical difficulties with the father’s application that the mother return to Melbourne “forthwith” and it would appear that it is an order that would be very difficult – if not impossible – for the mother to obey.
Even if it were made, however, it does not follow that it would automatically lead to a resumption of X’s relationship with the father.
The father submits – and in this regard, he is joined by the ICL – that it is unlikely that the mother will facilitate time between himself and X. It appears that this concern arises irrespective of whether the mother resides in Sydney or in Melbourne.
The father’s position is that the mother was unwilling to facilitate unsupervised time even when she was living in Melbourne. He contends that her complete unwillingness was demonstrated by the fact that she took the drastic and extraordinary step of relocating herself and X from Melbourne where they had made their home, where X’s extended family lives and where the mother has a cousin and relocated to Sydney – a city in which the mother had no supports, no family and no apparent friendship network.
Having regard to these matters, as well as the mother’s actions in abruptly ceasing X’s time with the father, it appears reasonable to conclude that there is a risk that the mother will fail to comply with Court orders to facilitate time irrespective of whether she remains in Sydney or is required to return to Melbourne.
As I understand the mother’s position, whilst she accepts that she has not observed the court orders, her reasons for doing so are reasonable in the circumstances having regard to a number of factors including, relevantly, her experience of family violence. To the extent that orders were made with her consent, she explains that as a young migrant mother, with limited English skills and having been married to the father without her consent, she felt isolated and pressured to agree to things she did not consider were in X’s best interests.
The court will be required to consider the mother’s actions, whether they were reasonable and the impact that they may have had on X. This will require the court to consider, inter alia, the competing contentions about family violence.
Pending that determination, and as discussed earlier in these reasons, it is not possible to exclude the mother’s contentions as to family violence. Nor is it possible to disregard the father’s denial of those contentions.
However, having regard to the fact that X is a young child who is vulnerable and dependent upon his caregivers to meet his needs, it appears that the court needs to take a cautious approach.
In the event that the controversial assertion of family violence is disregarded at this interim stage and the mother is required to return to Melbourne, the consequences if her contentions are accurate, would be to expose herself and X to the potential for further episodes of family violence. This, to my mind, cannot be in X’s best interests.
Conversely, in the event that the mother does not return to Melbourne on the basis of, inter alia, her contentions about family violence, it means that X and his father remain separated from each other, in circumstances where they have already undergone 15 months of separation.
Irrespective of whether the mother’s contentions as to family violence are accurate or inaccurate, it would appear that she is resistant to facilitating time between X and the father on an unsupervised basis. There is nothing to indicate that her resistance to unsupervised time will resolve upon her return to Melbourne.
As was observed by the legal representative for the mother, she is worried about X’s safety in the unsupervised care of the father and requiring her to return to Melbourne and facilitate unsupervised time may impact on her day to day functioning. This would be detrimental to X where it appears both parties consider – as a starting position – that X should continue to live with the mother.
In the event that the mother does not return to Melbourne if she is ordered to do so, then on the father’s application, a recovery order would issue and X would move into his father’s care. This is a drastic change in circumstances for X and the impact of such a change on X is unknown.
The mother’s actions in unilaterally relocating from Melbourne to Sydney without any notice to the father have had an unfortunate and adverse impact upon the Court’s capacity to assess what ongoing time arrangements between X and his father will be in his best interests. In addition, it would appear that the mother’s failure to inform the Court of these matters until the time of the family report interviews significantly prolonged and, in fact, delayed the legal proceedings. This can only be to X’s detriment given that children usually benefit from litigation coming to an end at the earliest available possibility.
Furthermore, the mother’s actions in this regard abruptly and unilaterally stopped his relationship with his father and extended paternal family members. The nature and effect of this on X cannot be assessed when the mother has not made X available for interview and assessment with the family consultant as was required not only by ordinary court processes, but by a further specific order of the court.
Determination
Turning then to the questions arising on this interim application.
Should the mother be required to return to Melbourne
It is not contended by the father or the ICL that X is at an unacceptable risk of harm in the mother’s care should she remain in Sydney.
To the extent that any risk has been identified should the mother remain in Sydney, it appears to be the ongoing risk to X’s relationship with his father.
As observed earlier, however, it appears that this is a risk that arises irrespective of whether the mother lives in Sydney or Melbourne. It will not be cured by requiring the mother to return to Melbourne, where she does not wish to live.
Whilst the father – and the family consultant – express some concern as to who X has contact with, who he interacts with and who sees him other than the mother, it appears that he attends childcare 2 days each week and that he has some contact with professional child care workers. The evidence from the child care workers – limited as it is – does not raise concerns for his presentation at childcare.
The mother contends that she and X will be at risk if she is required to return to Melbourne. The risk she identifies is that of family violence and the potential risks to her safety and her day to day functioning.
A further risk I consider is relevant is that if an order is made requiring the mother to return to Melbourne and she is unable to financially or practically make such a move, then on the father’s application, X would by recovery order, move into his primary care. This appears to have the potential to be enormously confusing, distressing and disruptive for X.
On balance, I consider that the risk to X of requiring the mother to return to Melbourne outweigh the risks to him in the event that the mother remains in Sydney.
What orders should be made for time between X and the father?
As observed earlier, the father has not made a proposal for time with X in the event that the mother remains in Sydney.
The mother proposes that X spend fortnightly time with his father, supervised by a professional contact agency with the cost to be borne by the father.
Given the mother’s modest financial circumstances, there appears little prospect that she can regularly fund travel for herself and X to Melbourne to facilitate time. She is in receipt of Centrelink benefits and has little by way of savings.
The father is also presently in receipt of Centrelink benefits and earns a modest income. It appears, however, that he owns property in Melbourne. As was put by his legal representative in submissions, he was able to garner financial support from members of the Country F community to pay a sum of money to the mother. It therefore appears he has a possibility of accessing funds that the mother does not.
For these reasons, I consider that time should occur in Sydney at the E Shopping Centre as proposed by the mother.
In determining whether time should be supervised by a professional contact agency, or a family member or at all, I make the following observations.
The court is faced with a mother who says she is worried about X spending time with his father. She seeks, on a final basis, that there be no time at all. Whether that is a reasonable or unreasonable position for her to hold, the court must confront the reality that she may be resistant to facilitating time.
X has not spent time with his father for 15 months. There are real questions as to whether he will have retained memory of his father and whether he would feel comfortable and safe leaving his mother’s care to spend time with his father. To the extent that the mother is resistant to facilitating time, there is a question as to whether any anxiety she feels would be transferred by her to X, making him anxious about his father.
It therefore appears that if time is going to occur, there needs to be a period of reintroduction between X and the father. The evidence does not indicate the parents have the capacity to manage this themselves.
X’s extended paternal family have played an important role in facilitating time in the past, particularly his aunt Ms H. However she too has not seen X for over 15 months and her capacity to provide the support X will require is unknown.
Whilst professional contact supervisors are strangers to X and to his parents, they are generally people who have experience and, or, training in facilitating time in the face of parental conflict. As neutral third parties, they are likely to be better placed to assist the parents with a process of reintroduction and – from the mother’s perspective – are more likely to have the mother’s confidence than a paternal family member.
Accordingly, I consider that X’s time with the father needs to be supervised on an interim basis, and that a professional contact service is the most appropriate form of supervision.
In light of the mother’s resistance to time occurring to date, I consider it necessary to require both parents to forthwith commence any intake process with either B Contact Centre or C Contact Centre for Children. Whilst I accept that the court’s determination that the mother – and therefore X – will remain in Sydney may mean that his father is unable to travel to spend time with him, I consider that the parties should do everything necessary to ensure that if the father is able to travel that X may spend time with him.
Should the matter be expedited?
Whilst the ICL invited the court to consider expedition as a preliminary question, the answer to which might then inform determination of the other issues, I considered it more appropriate to determine the questions of where X should live and the time he should spend first. There are a number of steps to be completed before the matter is ready for final hearing and even if hearing dates were allocated now it is not possible to guarantee that there will not be developments in the matter that would prejudice those hearing dates.
The mother’s decision to unilaterally relocate without notice to the father has had a significant detriment upon X’s relationship with the father. The father has diligently and appropriately sought to use the court’s processes to reinstate his relationship with X, but has encountered delays in having his applications heard.
The longer the court proceedings continue, the more difficult it is likely to be to re-establish the relationship between X and his father, if that is what the court ultimately orders.
Given the length of time since X has last seen his father, the fact that the mother proposes final orders that there be no time between X and his father, the issue of the mother’s non-compliance with court orders and the competing contentions as to family violence it appears that the court will require the assistance of a family report. If at all possible this matter should be given priority.
Further, I consider that upon receipt of a family report, the final hearing of the matter should be expedited so that X may have certainty in his future living arrangements.
Should there be any further orders made?
The father does not presently have a contact address for the mother. In the event that the mother determines to relocate again, there is a risk that the father and the court will be unable to locate X. Having regard to the events leading up to this application, I consider that this would be a significant risk to X.
Observing that the mother does not wish the father to know her residential address, I consider that she should be required to keep the ICL informed of her residential address so that in the event that she does not attend court related events or moves without notices, that there is an avenue available by which attempts can quickly be made to locate X.
Conclusion
For the reasons given, I consider that it is not in X’s best interests to require his mother to return to Melbourne on an interim basis.
I consider that it is in X’s best interests to remain in Sydney with the mother pending the final determination of this matter.
I consider that X should spend time with his father on up to 2 occasions each month, supervised by a professional contact agency, with time to occur at the E Shopping Centre.
I consider that it is necessary to obtain a family report in which X is sighted and assessed, so that the court may receive expert assistance as to his family dynamics and future parenting arrangements. If possible, the preparation of the report should be given priority. Upon receipt of the court, the final hearing of the matter should be expedited.
Addendum
The matter was listed for judgment and orders were pronounced on 27 January 2021.
After orders were pronounced, the legal representative for the mother informed the court that insofar as reference had been made to the “E Shopping Centre” it had been intended to be a reference to the “D Shopping Centre”.
Each parent’s legal representative consented to orders being made that provided for time to occur at either of the E Shopping Centre or the D Shopping Centre as may be agreed between the parties.
I certify that the preceding two hundred and forty-three (243) paragraphs are a true copy of the reasons for judgment of Judge M Neville
Associate:
Date: 28 January 2021
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