REEVES & HOOPER

[2014] FCCA 2433

FEDERAL CIRCUIT COURT OF AUSTRALIA

REEVES & HOOPER [2014] FCCA 2433

Catchwords

FAMILY LAW – Interim arrangements for care of child aged five years – child has lived predominantly with mother since date of birth – parties have poor and mistrustful relationship with one another – mother has re-partnered and has younger child with this partner – mother and partner have recently separated in circumstances involving serious family violence – father has retained child in contravention of previous court orders – unilateral action – assessment of risk – best interests.

Legislation:  

Family Law Act 1975, ss.4, 4AB; 60CC; 60CC(2A)

Applicant: MS REEVES

Respondent: MR HOOPER

File Number: ADC 1158 of 2011

Judgment of: Judge Brown

Hearing date: 17 September 2014

Date of Last Submission: 17 September 2014

Delivered at: Adelaide

Delivered on: 17 September 2014

REPRESENTATION

Counsel for the Applicant: Mr Britton

Solicitors for the Applicant: Bartel & Hall

Counsel for the Respondent: Ms Rieniets

Solicitors for the Respondent: Denise M Rieniets & Associates Pty Ltd

ORDERS

1. The father return the child X born (omitted) 2009 to the mother no later than 3:30pm this day, 17 September 2014 at a location to be agreed between the parties and failing agreement to be in the foyer of the (omitted) Police Station.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

1. All previous orders are suspended.

2. The child X born (omitted) 2009 live with the mother.

3. The child spend time with the father as follows:

   a.on alternate weekends from 5:30pm on Friday until 5:30pm on Sunday commencing 26 September 2014;

   b.the second half of the September/October school holidays from 5:30pm on Friday, 3 October 2014 until 5:30pm on Sunday, 12 October 2014; and

   c.the father’s weekend time to resume at 5:30pm on Friday, 24 October 2014.

4. The mother is to deliver the child to the father’s residence at the periods specified with the father to return the child to the mother’s residence at the conclusion.

5. The mother is restrained and an injunction issue restraining her from:

   a.bringing the child into contact with Mr J;

   b.discussing the proceedings in the presence or hearing of the said children or permit any other person to do so;

   c.changing her place of residence from the area of (omitted) without the written consent of the father.

6. During the period of the adjournment the mother undergo no more than three (3) supervised drug screen tests within twenty-four (24) hours of being requested to do so with such testing to be at the expense of the mother.

7. Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child X born (omitted) 2009 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

8. Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

9. Further consideration of the matter is adjourned to 19 November 2014 at 9:30am.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADC 1158 of 2011

MS REEVES

Applicant

And

MR HOOPER

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally, immediately following the interim hearing.  Given the controversy surrounding the matter and the fact that is has been ordered that the child concerned be independently represented, it is appropriate that the reasons be transcribed and released to the parties.

2. This morning, I am dealing with an interim application, in which Ms Reeves is the applicant and Mr Hooper is the respondent.  The proceedings relate to the parties’ child, X, who was born on (omitted) 2009. 

3. Ms Reeves, to whom I will refer as the mother, commenced these proceedings on 28 August 2014.  She seeks that X be returned to her immediate care.  In order to give effect to this order, she seeks that there be what is known as a recovery order, which is an order directed to both federal and state police authorising them to find a child and deliver the child to person named in the order. 

4. It is not a commonplace order that is made in the Court that police go and, effectively, arrest a child and deliver that child to a parent.  For obvious reasons, particularly the potential for emotional disruption to the child concerned, such orders are only made in situations of extreme emergency.

5. It is, I think, Ms Reeves’ position that there is a situation of such extreme emergency currently relating to X, who is currently in the care of his father.  On this basis, she sought that her application be heard urgently and in the absence of the father.

6. Ms Reeves argues that, regardless of the very many factual disagreements which have arisen between the parties in the past, there can be no doubt that she has been the parent, who has provided by far the majority of the care for X, since the date of his birth and therefore his interest will be served if he is returned immediately to her care.

7. At any event, I was not prepared to list the matter with the degree of expedition which Ms Reeves wanted and I certainly was not prepared to issue an ex parte recovery order for X.  The reason for that is that I have some familiarity with the parties because I have been dealing with various applications which they have each brought to court since, I think, mid 2012 or thereabouts, particularly in the context of the court’s circuit to Mount Gambier. 

8. At the time, as a result of my experience of the case, I suspected that Mr Hooper would have a different view of the situation from that of Ms Reeves.  Therefore, in order to have a full picture of what was happening with X, it would be necessary for Mr Hooper to be given an opportunity to respond and put his side of things.  It is now the position that Mr Hooper has filed a response and his own affidavit material. 

9. It is Mr Hooper’s position that, for reasons which I will outline in a moment, that X’s best interests will be served, at this interim stage, if he continues to live with his father.  Ms Reeves does not agree.  Accordingly, the court must make the necessary decision and decide with which of his parents X should live in the short to medium term.

10. It was a hotly contested issue.  The parties have very different views as to how X’s interests will be best promoted.  The mother points to her long continuity of providing care for X.  On the other hand, the father raises serious protective concerns relating to the child.  As earlier indicated the parties have a long history of litigation with one another in respect of X’s care.  In fact, they have been involved in litigation about him for most of X’s life.

Background

1. For the past few years, Mr Hooper has lived in the northern suburbs of Adelaide.  X is living with him at his home at present.  If that arrangement is sanctioned by the court today, he proposes that Ms Reeves should spend time with X at times to be agreed between the parties or, in default, as ordered by the Court.

2. As an alternative to that, he proposes that there be what is commonly called a week about regime, with X moving between his parents’ respective homes on a week about basis.

3. Very recently, or comparatively recently, I should say, Ms Reeves has moved to a property in (omitted).  As I understand it, (omitted) is a suburb of (omitted).  Prior to that time, she was living in (omitted) with a person by the name of Mr J.  Prior to that again she lived in (omitted).  

4. Ms Reeves and Mr J have a young child, Y, who was born on (omitted) 2013.  In addition to X and Y, Ms Reeves has another child.  She is Z, who was born on (omitted) 2005. 

5. The parties are of a similar age, both having been born in 1985.  They met in Adelaide in early 2008.  It is clear that the parties did not have a particularly long-term relationship with one another.  They separated in difficult circumstances when X was one year of age.  X was born in (omitted) where, as I understand it, Ms Reeves has strong family connections. 

6. The first round of proceedings was begun by Mr Hooper in March of 2011.  This was because Ms Reeves had formed a relationship with a person who was employed as a (omitted), from memory, at the (employer omitted), but who had been made redundant.  This gentleman had been offered a good position in (omitted) Queensland thereafter and Ms Reeves had accompanied him to Queensland, taking X and Z with her. 

7. From Mr Hooper’s point of view, this was not acceptable because of its implications for his relationship with X.  As a consequence Mr Hooper commenced proceedings to secure the return of X to South Australia.   At an interim stage, an order was made which resulted in X returning to (omitted), but he remained in Ms Reeves predominant care.

8. So from an early stage, there were many difficulties in the parties’ relationship with one another as parents.  Ms Reeves and X had come back from Queensland under sufferance to (omitted), and, I think, by this stage Mr Hooper had moved to Adelaide.  So there were logistical issues about the distances between their respective homes, which have persisted over the past four years or so.

9. At an early stage, a family report was prepared, which was completed by Ms N, who is a social worker.  Mr Hooper impressed Ms N.  She thought that he had a sound understanding of X’s needs.  Similarly, Ms N was impressed by Ms Reeves.  She thought that the child had a positive attachment to his mother, and Ms N’s view was that Ms Reeves was capable of satisfying all of X’s emotional and physical needs. 

10. Ultimately, as I recall – and I may be wrong about this – the issue about Ms Reeves going back to Queensland was resolved because Ms Reeves had by this stage met Mr J and decided that she no longer wanted to go and live in Queensland.  I might be mistaken about that, but not a great deal turns about it. 

11. At any event, for a number of years, Ms Reeves and X were ensconced in the southeast of the State.  Mr Hooper is a qualified (occupation omitted) who works in and lives in the northern suburbs of Adelaide.  More recently again Ms Reeves moved with Mr J to (omitted). 

12. Although I suspect that it would have been Mr Hooper’s preference that X live with him, he was aware that that was unlikely to happen, I think, because of what Ms N had written of her views about the child’s relationship with his mother and X’s tender years.  So the major issue in the case was to do with how the child should have a proper level of relationship with his father, given the distance between (omitted) and Adelaide and X’s age. 

13. It was agreed between the parties in February of 2012 that they should have equal shared parental responsibility for X, and orders were made for Mr Hooper to spend regular weekend time with X.   

14. Those orders were constructed in a way to ensure that X was able to see his father every third weekend.  He was a little boy at the time, and they were at the upper end, I suspect, of what was workable because of the distance, which is significant, and X’s tender years, and it is without a doubt the case that the orders were difficult to implement.

15. From Mr Hooper’s point of view, he always did what was required of him, but it is his perception that Ms Reeves, in association with Mr J, were as difficult as they possibly could be in implementing the orders which had been agreed. 

16. There was an unpleasant incident, at one stage, which led to contravention proceedings and which led to a long period of time, during which Mr Hooper did not see X.  He asserted that Mr J, as I recall, had been aggressive to him, and it was also suggested by Ms Reeves that X had come to some harm whilst in his father’s care, which Mr Hooper vehemently refuted.

17. I had no practical solutions to the distance between (omitted) and the northern suburbs of Adelaide.  It was clear throughout my dealings with the parties that there was a difficult and high-conflict situation between them.  As I say, their relationship had been a fairly brief and they had little experience of parenting X together.  From the mother’s perspective, the relationship had been a very unhappy one. 

18. In all these circumstances, the issues in the case could be easily stated but not so easily solved – the parties were the parents of a young child and there were great logistical problems arising in respect of X having a close and loving relationship with his dad.   

19. Ms Reeves was disinclined to move to live closer to Adelaide or in the metropolitan area of Adelaide, and Mr Hooper’s work, which he enjoyed and which was secure for him, could not be moved to the southeast.  Each party, no doubt, felt aggrieved that the other could not be more flexible for X’s sake.

20. Ultimately, as I have explained already earlier today, I formed the view in June of 2013 that, although it was likely to be perceived as being very unfair to Mr Hooper, if he was to have a relationship with X and X was to have a relationship with his father, Mr Hooper would have to do more of the hard yards than Ms Reeves, so far as travelling was concerned, because it was my impression that Ms Reeves was disinclined to put herself out to any great degree.

21. At any event, after some orders were made, there was a period – a fairly brief period – of quiet until these proceedings were commenced.  I should also point out that Z lives with her mother and spends time with her father subject to her wishes.  Orders were apparently made to this effect in November 2012.  I have not seen those orders. 

22. It is Ms Reeves’ position that on 11 July 2014, she left the premises in (omitted), which she was occupying with Mr J because she had been the victim of what she describes as severe domestic violence.  X was due to spend half of the mid-year school holidays with his father.  He was collected at (omitted) on 12 July 2014. 

23. Two days later, Ms Reeves contacted Ms K, who is Mr Hooper’s mother and X’s paternal grandmother.  At that stage, Ms Reeves informed Ms K that she had left Mr J because of the abusive relationship.  She also informed Ms K that she had to find new accommodation for herself and she needed support. 

24. On 16 July, Ms Reeves moved to (omitted) and got a cabin at the (omitted) Holiday Camp.  Ms Reeves delivered the child to Mr Hooper or his mother around this time.  It is, I think, the clear implication of Ms Reeves’s evidence that she expected that, when she had got herself settled, X would be returned to her.  

25. However, she has not seen X since (omitted) 2014.  By my calculations, although earlier I was corrected by counsel, that is a period of two months, July being the seventh month, it being 17 September, it being the ninth month, but nothing much turns on all of that. 

26. It is now Ms Reeves’ position that she has secured comfortable, stable, and permanent accommodation for herself in the (omitted) area, which will provide safe and secure accommodation for herself, X, Y and Z. 

27. I am advised that Mr J has commenced proceedings, in this court, in respect of Y.  Those proceedings are not before me but Judge Kelly has apparently made an interim order that Y remain living with her mother and is only to spend supervised time, as agreed  between the parties concerned, with Mr J. 

28. What Judge Kelly understands of the relationship dynamic between Mr J and Ms Reeves, I do not know.  In addition, I do not know what is the status of any application Mr J may have made to compel the return of Y to (omitted). 

29. On the one hand, Y is a child of tender years who has an entitlement to have a proper level of relationship with both her parents, but on the other hand, she is also entitled, as is, indeed, X and Z, to be protected from coming into contact with family violence.

30. What is the status of Mr J’s application, as I say, is unknown to me.  From the perspective of X, as I have noted earlier, it must be a good thing for him that his two parents, whom I have no doubt whom he loves both very much indeed, that they are now 100 plus kilometres separated by, rather than 400 plus kilometres, but I also concede that 100 kilometres is still a very significant distance. 

31. I am also told by Mr Britton, counsel for Ms Reeves, that she has a vehicle.  I think that might have been provided for her by Mr Hooper, or certainly, a financial contribution made by him towards its acquisition.  I am also told that she has a licence. 

32. So from Ms Reeves’ point of view, Mr Hooper has seized on her difficulties with Mr J to hold on to X.  It is the implication of her case that Mr Hooper has seized on these difficulties, for tactical reasons and perhaps to pay her back in the same coin that he perceives he was paid earlier on.  Whether that is so, I am not in a position to say. 

33. It is currently Ms Reeves’s position that she has irretrievably separated from Mr J and she has an interim intervention order which names her, Z, X, and Y as protected persons.  That was granted by the Mount Barker Magistrates Court on 15 August 2014.  It is her case that, on the basis of that order, there is no real likelihood of X being re-exposed to family violence. 

34. Mr Hooper has deposed a lengthy affidavit in support of his position.  As I indicated earlier, he regards the mother as a dishonest and manipulative person.  It is his case that she will make unfounded allegations of violence and improper conduct against people, including himself, when it suits her, for her tactical purposes, but she has not been frank and honest about issues to do with her own relationships, particularly with Mr J, which must concern the court.

35. It is Mr Hooper’s position that there are many unanswered questions about Mr J.  What does it mean when the mother says that she has been fleeing from endemic or serious protracted family violence?  Does this mean that, for the entire period of her relationship with Mr J, she and therefore X have been exposed to family violence on a serious daily basis?  What are the implications, of this, in a psychological sense, for X?

36. It has been asserted in the past that X has acted out, in an aggressive way, including swearing and behaviour of that kind, which in the past has been said to relate to Mr Hooper.  Is it the case that the child has really been reacting to Mr J’s violent behaviour, in circumstances in which Mr Hooper has been wrongly accused of being the instigator of this behaviour? 

37. If so, has the mother, during the period of time that the child has been in her care, been remiss in her duty to protect the child and has she put her disruptive and dysfunctional relationship with Mr J in priority over X’s needs? 

38. In these circumstances, it is Mr Hooper’s position that the Court should be very cautious and should not just glibly return the child to the mother until she has provided more information about these matters and the Court itself can be satisfied that X will be safe.  Essentially the father asserts that given her volte face, in respect of Mr J, the mother can have no credibility.

39. In addition, it is the father’s position that the mother has disclosed to Ms K all manner of issues to do with the problems in her relationship with Mr J, that she – that is, Ms Reeves – had her own issues with alcohol and substance abuse, that she was not good with managing money, and that Mr J had a gambling addiction. 

40. In essence, the mother has previously been secretive about all the problems in her life and all the difficulties she was exposing X to.  But these problems have now all come home to roost for her and she, when placed under pressure, has been forced to reveal them.

1. In addition, more recently again, Mr J has been wanting to contact Mr Hooper.  In these circumstances, perhaps unsurprisingly, he has made his own criticisms of Ms Reeves, including drink driving, drug abuse, binge drinking, and so on and so forth. 

2. It is clear that X is at the centre of a complicated blended family.  Mr J brought a number of children into his relationship with Ms Reeves.  So no doubt X has some form of relationship with these children, which have been disrupted.

3. It is also Mr Hooper’s case that it is axiomatic that the Court can form the view that, on the evidence available, Ms Reeves has a history of making poor lifestyle choices, including her relationship with Mr J, and that these poor choices must have implications for X’s wellbeing.  Accordingly, on that basis, at this stage, it is Mr Hooper’ submission that the child’s interests will be best served if he stays where he is.

The nature of an interim hearing

1. This is not the first time I have had to deal with applications brought by the parties.  Although I have written a lengthy judgment in the matter, it remains the case that I have never, I think, conducted a final hearing in respect of the parties’ various applications.  Rather, I have dealt with them each at the interim stage. 

2. Accordingly, at this interim stage, I only have the parties’ affidavit material.  It is therefore difficult, if not impossible, for me to make concluded findings of fact about all sorts of matters which are in dispute between them.  

3. But notwithstanding that difficulty, I have a great deal of evidence which has been gathered over a significant period of time.  That evidence includes the family assessment report.  I think I can make some findings of fact, at this interim stage.

4. From the evidence, it is, I think clear that X must have a very significant relationship with his mother.  It is also the case, I think, that she must be the person who, up to this stage, historically has provided more of his emotional and psychological sustenance.  Certainly, that was Ms N’s view, albeit that was many years ago now.

5. It is also, I think, clear that Mr Hooper has a close and loving relationship with X.  That is to his great credit.  As I say, he has done the hard yards driving long distances every three weeks, often in winter and at night, to spend time with X.  That is to his credit.  He has never failed in his duty to make himself available to X.  His commitment to X cannot be questioned.

Legal Considerations

1. In this, as in all cases to do with children, X’s interests are the paramount or most important consideration. In determining how his interests are to be best served, I must consider a long list of matters contained in section 60CC of the Family Law Act.

2. In this matter I have to consider various matters that are set out in section 60CC of the Family Law Act. As the parties will be aware, there are two primary considerations and then a number of what are called additional considerations. Usually more emphasis is given to the primary considerations which are as follows:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

4. Mr Hooper’s case centres on issues to do with protecting X from abuse and exposure to family violence.  The concept of abuse is defined in section 4 of the Act. 

5. It includes assault and also causing a child to suffer serious psychological harm, including but not limited to when that harm is caused by the child being subjected to or exposed to family violence.  It can be child abuse if a child is exposed to family violence and suffers serious psychological harm.  Again it is Mr Hooper’s case that he is concerned that X may have suffered such psychological harm because of his exposure to Mr J’s violent behaviour.

6. The concept of family violence itself is defined in section 4AB of the Act.  It means violent, threatening or other behaviour by a person that coerces or controls a member of that person’s family or causes the family member to be fearful.  On Ms Reeves' own case she has been subjected to family violence because she says she was frightened of Mr J. 

7. A child is exposed to family violence if he or she experiences the effects of family violence, either during episodes of violence or experiences its aftermath.  In this context, interestingly, the legislature has given some examples of such exposure. 

8. If a child overhears threats or sees an assault taking place or provides comfort to somebody who has been assaulted or is present when police come to an incident of family violence that child is taken to have been exposed to family violence.  So it seems, I think, undoubtedly to be the case that X has been exposed to family violence. 

9. On the father’s case X has said that when the police came to take Mr J away, he had to look after his little sister, and he was frightened.  This is what Mr Hooper has said that the child has asserted to him.  And, in any event, the police did come and Mr J was arrested, it would seem.  

10. I would be naïve to think that the child could be kept away from what seems to have been, on Ms Reeves' own case, a very dysfunctional relationship.  The structure of the Family Law Act is that I have to give pre-eminence to matters of family violence.  So that is where we are.  These are effectively protective concerns. 

11. In terms of the possible future exposure of X to family violence, it is the mother’s case that, if Mr J is taken out of the equation, the child will not be further exposed to family violence and so will be safe and protected. 

12. Mr Hooper’s view is a more subtle and nuanced one.  He contends that X is traumatised now because of his recent exposure to Mr J’s violent behaviour and is likely to remain worried about all manner of things.  For these reasons the court should be cautious about returning the child precipitately to his mother’s care, particularly given, on his case, X is safe and secure with him.

13. It indeed may be the case that X is a traumatised little boy.  For all I know, X may be worried about what is happening to his mother because he has not seen her for a number of weeks, as a consequences of decisions made by Mr Hooper. 

14. It is difficult to for me to know what X is feeling, but, it does appear to be the case that the parties have no capacity to work through this crisis together and talk frankly about it, whilst remaining focussed on what is best for X. 

15. Although I am not in a position to conclude with certainty, at this point, it is not unreasonable for me to give some weight to Ms Reeves' contention that, in the parties’ long history of disputation and counter disputation with one another and struggle for the child, that her current crisis is something in respect of which Mr Hooper has sought to take tactical advantage over her. 

16. As I say, Ms Reeves went to Ms K to ask for help.  No doubt, she regrets that now.  Given the current circumstances, I think it highly improbable that she would have done that if she had considered that it would come to this.  

17. I think the agreement between the parties, either explicitly expressed or impliedly understood by both was, at some stage, in the not so distant future, X was to be returned to his mother.  Accordingly, I would characterise Mr Hooper’s conduct, in respect of retaining X, as being unilateral in nature.

18. In this context, I have to determine whether the overall circumstances, confronting Mr Hooper, justified this unilateral action, on his part, in regards to X.  This involves me making some sort of assessment of the risk that Ms Reeves represents to X.  Is the risk so great that it would be unacceptable to return the child to his mother’s care and therefore was Mr Hooper’s decision to retain X justified?

19. That is a difficult task to accomplish on the material before me.  The evidence indicates that up until recently Ms Reeves has been able to provide care for the child without serious criticism.  I have no objective evidence to indicate the involvement of any other agency, such as Families SA, in Ms Reeves' life.  She, it would seem, has not made a good choice, at least of late, in terms of her partner, with Mr J. 

20. But would it be unacceptable because of that for the child to be returned to Ms Reeves care?  At this juncture I do not think it would be an unacceptable risk, given that she and Mr J are now separated and live a significant distance apart.

21. In addition, there are risks, for X, I think, of terminating what is a significant relationship between mother and child, which, at this stage, has been held in abeyance for a significant period of time.  It seems very clear that X’s relationship, with his mother, is a very significant relationship, if not the most significant one, for him, at this stage, given she has always been his main provider of care.

22. This is one of the additional considerations I have to consider.  I have to consider the nature of the child’s relationship with each of his parents and with other people significant to the child, including grandparents.  So, no doubt, as I say, X has a very strong relationship with his father and his paternal grandmother, and no doubt with Mr Hooper’s current partner. 

23. But it would seem more likely than not that the child’s pre-eminent relationship is with his mother.  This is significant because there are risks of that relationship being severed or damaged, if the current situation, unilaterally brought about by Mr Hooper, continues indefinitely.  In addition, X is likely to have strong ties with his half-siblings, particularly his older sister, Z, less so with the newborn, Y.

24. I am also obliged to consider the likely effects on the  child concerned of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents, or any other sibling.  The possible effects for X, at this stage, of what I regard as a dramatic change of circumstances, must be somewhat unknowable. 

25. However X has always lived in the same household with his mother.  This arrangement has come to an end in difficult and conflicted circumstances.  It seems likely that this will have some consequences for X.  Children are usually best served by routine and predictable arrangements.  Both parties have been involved in bringing about major and sudden changes in X’s life.

26. There was some factual dispute as to what has happened, up to this point, in terms of X spending time with his mother.  From the father’s point of view he said to Ms Reeves come up to Adelaide to spend time with X, but the child will have to come back to me regardless of the current court orders.  The mother, it is said, did not take up that offer and there is some criticism made of her for that. 

27. I think I would be naïve to think that the parties were capable of managing this difficult situation consensually.  There is, after all, a court order which says that the mother would be entitled to take the child away with her.  It seems the only way the issue could be taken forward was by further court proceedings.  In this context, the mother did not waste time bringing her case back to court.

28. Mr Hooper responded to the mother’s application rather than vice versa.  One of the aspects apparent from his affidavit material is that he remains somewhat resentful about the considerable legal costs he has incurred up to this point.  There is certainly no love lost between the parties. 

29. In all these circumstances, I think it would be naïve to think that they could manage some sort of informal arrangement in respect of X.  Regrettably, it was always going to come to this, and somebody like me would have to make some sort of decision as to where X will live and with whom. 

30. I also think it is naïve for Ms Reeves to think that there can be a seamless return to the previous orders.  I have decided that X should be returned to her care, but that is only on an interim basis, because there are many question marks that remain, not least of which what’s going to happen in terms of her relationship with Mr J.

31. I have also come to the view that there needs to be a more nuanced inquiry into this matter.  To that end, I am going to order that X be independently represented in these proceedings. 

32. But at this stage I think it is a proportionate response to the risk of X being re-exposed to family violence, given that there is credible evidence that Ms Reeves and Mr J live in separate households and there is a domestic violence restraining order from an appropriate court, that I can make an injunction restraining Ms Reeves from bringing X into contact with Mr J.

33. Although it may later come into conflict with an order potentially to be made by another judge of this court, I am also going to make an injunction restraining Ms Reeves from changing X’s place of residence from the area of (omitted). 

34. It is much more manageable for X to spend time with each of his parents whilst they are living closer together.  At this stage, given that that is the case, I think there is no reason why Mr Hooper cannot spend more time with the child than every third weekend. 

35. I’m going to adjourn the proceedings to 19 November, which, on my calculations, is about two months from today.  It will also include the September/October school holidays.  Mr Hooper will be able to spend time with X in accordance with the earlier orders for the first half of that school holiday.  So that will ensure, I think, that X maintains his proper level of relationship with his father. 

36. Given the allegations of drug abuse levelled at Ms Reeves, I will also make an order that she undertake regular drug screen testing on three occasions during the period of the adjournment. if Mr Hooper dictates that she should do so. 

37. I will direct that the mother deliver the child to the father’s residence the commencement of the periods of time specified in these orders with the father to return the child at the mother’s residence at their conclusion. 

38. The mother is restrained, and an injunction issues restraining her from bringing the child into contact with Mr J and from discussing these proceedings in the presence or hearing of the child or permitting any other person to do so.

39. During the period of the adjournment the mother is to undergo a supervised a drug screen testing procedure within 24 hours of being requested to do so with such testing to take place at the mother’s expense and there to be no more than three such drug tests during the period of the adjournment. 

40. I will order that the child be independently represented in these proceedings and to this end the Director of the Legal Services Commission of South Australia is requested to make arrangements for the representation of the child. 

41. There will be an injunction that the mother is restrained from changing her place of residence from the area of (omitted), without the written consent of the father. 

42. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:             17 September 2014