Ricks and Andre
[2017] FCCA 3159
•15 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RICKS & ANDRE | [2017] FCCA 3159 |
| Catchwords: FAMILY LAW – Interim proceedings in respect of child aged twenty months – parties separated prior to child’s birth – father commenced proceedings to restraining mother moving child interstate – consent injunction made restraining mother from so moving – mother has moved interstate but remains compliant with consent orders requiring child to spend regular periods of time with father – father seeks child’s return to South Australia – mother seeks order authorising child to remain living in her care in Victoria – mother asserts her psychological wellbeing will be compromised if she is compelled to return to South Australia – issues relating to relocation – nature of interim hearing – best interests – matters to be considered. |
| Legislation: Family Law Act 1975, ss.4, 11F, 60B; 60CA; 60CC; 61DA; 62G; 65DA; 65DAA |
| Cases cited: B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 C & S [1998] FamCA 66 Morgan & Miles (2007) FamCA 1230 U v U (2002) FLC 93,112 |
| Applicant: | MR RICKS |
| Respondent: | MS ANDRE |
| File Number: | ADC 2241 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 9 December 2017 |
| Date of Last Submission: | 9 December 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 15 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Seymour |
| Solicitors for the Applicant: | Legal Services Commission |
| Counsel for the Respondent: | Mr Roberts |
| Solicitors for the Respondent: | Andrew Hill & Co |
ORDERS
The mother is ordered to return the child X born (omitted) 2016 (herein referred to as “the child”) to an area within 10 kilometres of the (omitted) Post Office no later than 5.00pm on 28 February 2018.
UNTIL FURTHER OR OTHER ORDER:
In the event that the mother elects to live within a 10 kilometre radius of (omitted) the child live with the mother and pending the child’s return, pursuant to order (1) hereof the mother be at liberty to live with the child in (omitted) in the state of Victoria.
In the event the mother elects not to live in an area within 10 kilometres of the (omitted) Post Office pending the final hearing of the matter and fails to comply with order one hereof, the father has leave to apply on short notice for a recovery order to issue in respect of the child and for any necessary ancillary orders.
The child spend time with the father as follows:
(a)each alternate weekend from 5.00pm Friday until 5.00pm the following Sunday;
(b)at Christmas from 3:00pm on 23 December 2017 until 12:00pm midday on 24 December 2017;
(c)at such other times as agreed between the parties.
All handovers are to occur at the home of the maternal grandmother at (omitted).
This matter be listed for final hearing before Judge Brown on 15 & 16 October 2018 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
Pursuant to Section 62G(2) of the Family Law Act (1975) the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 31 March 2018.
The family assessment to deal with the following matters:
(a)to include interviews with the parties, the child and relevant family members;
(b)observed interaction between the child and the parties;
(c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;
(e)any other matters that the family assessor considers important to the welfare or best interests of the said child.
The solicitors for the parties’ forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference
NOTING:
A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
Further consideration of this matter is adjourned to 9.30am on 11 April 2018 and in particular to consider the interim arrangements concerning the child’s living arrangements and time spend with the father and whether a recovery order should be made in accordance with the matters contained in paragraph 103 of the reasons for judgment herein.
IT IS NOTED that publication of this judgment under the pseudonym Ricks & Andre is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 2241 of 2017
| MR RICKS |
Applicant
And
| MS ANDRE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a relocation case. Relocation cases arise when one parent of a child wishes to move far away from the other parent concerned, taking the child of the relationship with him or her.
Such cases are invariably very difficult. Australia is a free country. As such, individuals, including parents, are free to live where and how they like. On the other hand, children have a right to know and to be cared for by both their parents.
As a consequence of these factors, superior courts in Australia, including the High Court, have indicated that every family law case, involving a relocation aspect, requires close and idiosyncratic examination.
Such a degree of intricate scrutiny is not usually possible at the early interim stage of proceedings, at which stage evidence is very often hastily prepared and so incomplete. The most significant aspect of evidence not usually available, at the interim stage, being a family report.
Accordingly, at the interim stage, the normal approach adopted by the court is not to allow a relocation of a child, involving a significant level of distance, unless there is some kind of emergency or personal crisis confronting the relocating parent, which if left unresolved has potentially serious implications for the welfare of the child concerned.
Rather, the court is directed to deal with difficult issues of relocation, at the final hearing stage, when all relevant evidence will have been collated, including any expert assessment of the family concerned and this evidence can be thoroughly tested.
In particular, the court is cautioned against conducting any relocation case against a background where advantage is skewed in favour of a parent who has earlier unilaterally moved with the child concerned.
Background
Mr Ricks and Ms Andre are the parents of X born (omitted) 2016. Mr Ricks is a (occupation omitted), who lives in the (omitted) suburbs of Adelaide. He is 25 years of age. X is his first child.
Ms Andre is 23 years of age. Previously, she has worked in (employment omitted) but presently is in receipt of social security. She has not revealed her residential address, but is currently in the (omitted) area of Victoria, approximately a seven hour drive away from Adelaide. X is her only child also.
The parties separated before X was born. Ms Andre has indicated that she suffered severe post-natal depression, after X was born. She has been prescribed anti-depressant and anti-anxiety medication. It is her case that she does not react well to stressful situations. Necessarily, being involved in a court case is a stressful situation.
The paternal grandfather (Mr Ricks’s father) and the maternal grandmother (Ms Andre’s mother) are in a relationship. However, Mr Ricks and Ms Andre are not biologically related. From Ms Andre’s perspective, the relationship between her mother and Mr Ricks’s father creates an extremely difficult personal dynamic for her.
Mr Ricks did not see X for an extended period of time in 2016. He began to spend time with her regularly, from August 2016 onwards. This time was facilitated by the maternal grandmother. It included overnight time, which the father took at the home of his aunt, who also lives in the (omitted) suburbs of Adelaide. It is conceded by Ms Andre that she too has lived in this part of Adelaide for a number of years.
In late May of 2017, Ms Andre indicated to Mr Ricks that she wished to move, with X, to (omitted), in Victoria, where her aunt lives. On 5 June 2017, Mr Ricks began proceedings in this court. On an interim basis, he sought the following orders:
·The parties have equal shared parental responsibility for X;
·He spend alternate weekends with X, from 5:00pm Friday to 5:00pm Sunday;
·He spend regular periods of time with X, on special occasions, such as Father’s Day; Christmas; and Easter;
·The mother be restrained, by injunction, from removing X from the metropolitan area of Adelaide.
Significantly, on neither an interim nor a final basis, does Mr Ricks seek an order that X live with him. Accordingly, by necessary implication, he concedes that Ms Andre has been X’s primary attachment and should remain so. He has not made any significant criticisms of Ms Andre’s ability to care for X.
At the request of his solicitor, Mr Ricks’ application was given an urgent return date before the court. The date allocated was 24 July 2017. The court records indicate that Ms Andre was personally served with Mr Ricks’ application, at an address in (omitted), on 11 June 2017. There is no controversy that this address is Ms Andre’s grandmother’s home. Mr Ricks also lives in (omitted).
On 24 July 2017, Ms Andre appeared before the court in person; whilst Mr Ricks was represented by a barrister briefed by his solicitor. At the time, Ms Andre had not filed any answering documents. From Mr Ricks’ perspective, the urgent issue, at the time, was Ms Andre’s apparent wish to move with X to Victoria.
I cannot recall precisely what occurred on 24 July 2017. However, counsel for Mr Ricks and Ms Andre herself engaged in some discussions about the future conduct of the matter. Whether Ms Andre was able to access the duty solicitor, at the time, is unclear to me. I cannot remember now whether she did or not.
However, what did occur was that the parties provided me with a hand written minute, which both had signed. I was told that the document in question represented an agreed position. The proposed orders were as follows:
“UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:
1. The child X born (omitted) 2016 live with the mother.
2. The child spend time with the father as follows
a. Each alternate weekend from 5:00pm on Friday until 5:00pm on Sunday commencing, Friday, 4 August 2017;
b. On Father’s Day from 10:00am until 5:00pm; and
c. At such other times as agreed.
3. Handovers are to occur at the residence of the maternal grandmother in (omitted).
4. The mother is restrained and injunction is hereby granted restraining her from changing the child’s principal place of residence from metropolitan Adelaide.
5. The respondent file and serve a Response and Affidavit in support within 28 days of today’s date.
6. Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 13 October 2017 at 9:30am, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.
7. Further consideration of the matter is adjourned to 7 November 2017 at 9:30am for directions.”
Ms Andre and Mr Ricks both attended the child dispute resolution conference, which did not resolve the issues outstanding between the parties. One of the functions of such conferences is to provide the court with advice, particularly in respect of the family dynamic in the case concerned and identify relevant issues.
It became apparent from the information provided by the family consultant that, notwithstanding the injunction of 24 July 2017, Ms Andre had moved from Adelaide to (omitted), with X. However, she was facilitating the alternate weekend time agreed upon between the parties. In order to facilitate this time, Ms Andre was driving between (omitted) and Adelaide each fortnight.
Family consultant Ms R summarised the arrangements as follows:
“Currently every second week the child spends Friday with her mother and the maternal grandmother, with the father collecting the child from the maternal grandmother at 5 PM. The child then remains with the father (at his residence with the paternal aunt) until he returns her to the maternal grandmother at 5 PM Sunday. The mother then spends some time with the child, the maternal grandmother and the paternal grandfather. The child is put to bed at the maternal grandmother’s house while the mother sleeps elsewhere. The child has breakfast with the maternal grandmother and the paternal grandfather and is then collected by the mother before returning to (omitted).”
Family consultant Ms R identified some other relevant issues, in the case, in the following terms:
·Both parties had recently begun new relationships – the mother being in the early stages of entering a relationship with a man living in (omitted); whilst the father had been in a relationship, for approximately six weeks, with a woman with three children, the youngest of whom was approximately 12 weeks old;
·The mother reported that X was reluctant to separate from her but appeared to be coping well with the current arrangement;
·Both parties reported to Family Consultant Ms R that their co-parenting relationship was very difficult, with limited communication;
·The mother reported that her main support network was in (omitted) and she could get cheaper accommodation there;
·The father remained opposed to X moving out of the Adelaide area because of the possible impact on his relationship with her;
·The mother was prepared to facilitate the current relationship for the foreseeable future, but was also open to X spending significant time with her father, if he moved to (omitted);
·No issues were raised in respect of drug or alcohol misuse by either party;
·No mental health issues were identified, so far as Mr Ricks was concerned;
·Ms Andre reported feeling stressed at her perception that she was being controlled by Mr Ricks and the court, in not being permitted to relocate, as she wished.
Ms R described the current situation confronting the family concerned as being complex. She recommended that both Mr Ricks and Ms Andre and, if possible, their new partners, attend a post-separation parenting course. In the short to medium term, Ms R did not recommend any change to the interim time spending arrangements for X.
However, she noted that at one and a half years of age, X did not have object permanence and in generic terms, would benefit from a regime of more frequent but shorter periods of time with her father rather than the longer periods she currently spent away from her primary carer. In Ms R’s view, this would assist X to develop a relationship with her father more effectively.
Ms R also recommended that Ms Andre keep Mr Ricks informed of details of X’s routine, particularly details of her personal likes and dislikes. Finally, Ms R recommended that a family report be prepared.
It was only on 29 November 2017 that Ms Andre responded to the father’s application. She explained the delay as being the result of difficulty in obtaining legal advice, particularly given her currently limited financial means.
On both an interim and a final basis, Ms Andre seeks an order that she be at liberty to live with X, in Victoria. Otherwise, she proposes a continuation of the current fortnightly time spending regime. It is a significant element of her case that Mr Ricks can continue to see X regularly, as the parties agreed, whether she lives in (omitted) or Adelaide.
From Mr Ricks’s point of view, such a proposal is unworkable in the longer term. He fears that once these proceedings are concluded, it will be inevitable that Ms Andre will not be able to facilitate his time with X over distance (or will not be inclined to do so) and, as a consequence, the relationship between him and X will be adversely affected. As such, he opposes Ms Andre’s application to remain living, with X, in (omitted).
From his perspective, Ms Andre has flagrantly breached the injunction restraining her from moving, with X, outside of Adelaide. In these circumstances, he contends that the court is duty bound to enforce its orders. In addition, it is his position that it is clearly not in X’s best interests, given her tender years, to live so far away from so many significant relatives, particularly her father.
However, to his credit, he is open to the court allowing Ms Andre an extended period of time to organise her affairs in Victoria, before she is required to return to South Australia. In this context, he proposes she be allowed until the end of February.
These proceedings are directed to resolving this issue on an interim or provisional basis, pending a more detailed examination of all the various issues arising in it. I will allocate 15 & 16 October 2018 as the time for the final hearing. This is the earliest date currently available to me.
The nature of an interim hearing
At the interim stage, the hearing before the court takes place in a shortened form. As a consequence, the court is not in a position to hear oral evidence from the parties concerned, (and their witnesses) and so resolve any issues of disputed fact.
In addition, at the interim hearing stage, cases often arise in circumstances of emergency, which do not allow sufficient time for all relevant evidence to be gathered. In particular, it is very often the case that there is insufficient time for a detailed family report to be prepared, which examines the nature of the relationship between the parents and child concerned in the case.
As Family Consultant Ms R has observed, a family report will be required in this case. In addition, at this stage, the evidence provided by Ms Andre is extremely limited, particularly in terms of her current level of psychological well-being.
Notwithstanding these evidentiary issues, the court is still required to make a decision concerning interim or provisional arrangements for the care of the child concerned. Although the nature of the hearing is different at the interim, as opposed to the final hearing stage, the same legal principles are applicable.
Ms Andre’s position
It is Ms Andre’s position that she is the undisputed primary carer of X and has been since she was born. She asserts that Mr Ricks was initially disinterested in the child and it is only the grandparents who have facilitated any relationship between father and child. In these circumstances, she presents as somewhat taken aback that Mr Ricks can apparently challenge her freedom of movement, given her self-characterisation as the custodial parent.
At the same time, in her affidavit material, Ms Andre has indicated that she accepts the importance of X having an appropriate level of relationship with her father. In this context, she has indicated a willingness to bear the total financial burden of bringing X to visit, her father regularly. It is her case that Mr Ricks is unwilling or unable to see the relocation issue from her perspective.
As indicated above, it is a significant element of her case that she has to date regularly facilitated X spending regular periods of time, including overnight time, in the care of her father. She asserts that she will continue to do so.
Accordingly, from her perspective, it does not matter to either X or Mr Ricks whether she lives in (omitted) or Adelaide. On the other hand, it is Mr Ricks’s view that it is largely axiomatic that the regular long drive involved is not in X’s best interests and is unsustainable in the longer term.
Ms Andre deposes that she has been involved with her current partner since (omitted) 2017. She lives with her partner, in (omitted). She has known him since she was 12 years of age. She plans to lease premises with her partner, in (omitted) from January of 2018 onwards, if she has not done so earlier.
Ms Andre asserts that X is consistently returned to her with nappy rash; colds; worms; unidentified bites; and other infections. She further asserts that X is difficult to control after she has spent time with her father and takes some days to resume her normally placid demeanour. Ms Andre is concerned at the prospect of Mr Ricks parenting X away from either his father’s or his aunt’s home. She does not trust Mr Ricks’ new partner.
Ms Andre’s reasons for wishing to live in (omitted) can be summarised as follows:
·Her aunt, who lives in (omitted), is very supportive of her;
·Her two best friends live in (omitted);
·Her partner and his family provide her with much needed emotional support, which is not available to her in Adelaide;
·She was sexually assaulted in the (omitted) suburbs of Adelaide, when she was fourteen years of age. As a consequence, Adelaide has very unpleasant connotations for her. These connotations are intensified by her poor relationship with her own father;
·Her relationship with Mr Ricks is toxic and this toxicity has spread throughout her family;
·In these circumstances, she does not feel supported by her own mother, particularly given that she has re-partnered with Mr Ricks’ father;
·Her psychological health has improved markedly since she moved to Victoria. In particular, she has weaned herself off her anti-depressant medication;
·She is deeply unhappy in South Australia.
In all these circumstances, Ms Andre deposes as follows:
“I desperately need a fresh start in a place where I have significant support and do not have awful memories or complicated relationships.
I am unable to fully resolve my mental health issues while I am forced to live in a place which I deeply wish to leave and which causes me immense distress and anxiety. I struggle to even attend at the shops alone. I have tried living in different suburbs or working in different industries but cannot recover while living in South Australia.
I say that I am deeply unhappy in South Australia.
I say that it is not in X’s best interests to have a mother who is unhappy and cannot resolve her depression.
I cannot be the best mother I can be while in South Australia. I have seen X respond well to my genuine happiness and relaxation in (omitted).”[1]
[1] See mother’s affidavit filed 29 November 2017 at paragraphs 64-68
None of the mother’s assertions is supported by any independent evidence from sources apart from Ms Andre herself. In particular I have not been provided with any medical or psychological evidence to support the mother’s assertion that her parenting of X is likely to be significantly compromised, if she is compelled to return to live in the Adelaide area. I do not have any expert evidence in respect of her current level of psychological functioning.
In my view, this is a significant weakness in her case. Another significant problem confronting her is the fact that she elected to move interstate and make significant commitments as a result of her actions, notwithstanding the injunction to which she had ostensibly consented. In this context, she has not deposed that she did not understand the order made on 24 July last.
Ms Andre has not clearly articulated what would be her position if the court directs that X should return to live in the Adelaide area pending the final hearing on 15 & 16 October 2018. Similarly, Mr Ricks has not specifically indicated what his position would be in this situation, given that he does not ostensibly seek to challenge Ms Andre’s position as the child’s primary carer and residence providing parent.
In this situation, the court is compelled potentially to offer Ms Andre an unpalatable choice – either she returns to live in Adelaide and continues to provide a significant level of care for X, or, in the event she elects to remain living in (omitted), with her partner, X moves to live with Mr Ricks.
The difficulty with this position is that Mr Ricks has not specifically advocated the latter position and – putting aside issues to do with Ms Andre’s unilateral relocation – it is at the very least arguable that such an outcome is not one calculated to be in the child’s best interests, either in the short or longer term.
At the same time, in my view, there is significant moment to Mr Ricks’ submission that the issue of relocation should be determined on a level playing field and after a close examination of the pros and cons of the move, in prospective terms, from the perspective of X’s best interests.
In effect, if the court does elect to take the option of requiring Ms Andre to return to Adelaide, with X, it would require Ms Andre to subjugate her preferences to those of Mr Ricks, who is not required to make any personal sacrifices, regarding his choice of places in which to live. He can live wherever he likes, but Ms Andre cannot.
No doubt, Ms Andre would categorise such an outcome as being unfair to her given her position that Mr Ricks could fairly easily move to Victoria to be closer to X, rather than X and she being compelled to move closer to Mr Ricks, notwithstanding the fact that she rather than he has been the child’s primary carer, up to this stage of her life.
In addition, although she does not advocate it as such, she contends that it would be fundamentally detrimental to X’s best interests to separate her from her current primary carer, which is a likely result, if it remains her position that she simply cannot function to any acceptable level in Adelaide and Mr Ricks remains obdurate that he cannot move closer to X.
Mr Ricks’ position
Mr Ricks’ position can be easily summarised. He wishes to have a close and loving relationship with X. She is a child of tender years. At this stage of her development, she requires to interact fairly frequently with him. This is not easily possible if she lives in (omitted) and he continues to live in Adelaide.
Given his recent relationship, he cannot easily move from Adelaide to (omitted), even if he was inclined to do so. In any event, when he learnt of Ms Andre’s plans to move to Victoria, he wasted no time in bringing the current proceedings to restrain X leaving South Australia. Ostensibly at least, Ms Andre agreed not to move X and a consent order was made to this effect. Public policy considerations dictate that the court should enforce its order.
Mr Ricks also submits that the current regime advocated by X cannot be regarded as being in the child’s best interests, given the length of the drive she is required to undertake regularly and the intermittency of the time she spends with him under the current regime. By necessary implication, much of his case focuses on X’s tender years and so the vulnerability of her significant relationships to the vicissitudes of distance.
Although Mr Ricks has sought a recovery order in respect of X in his initiating application, he has not clearly articulated what would be his position if Ms Andre indicates that she will not return to South Australia, regardless of the court’s order. Rather, both he (and indeed Ms Andre) seem to have approached the case on the basis that Ms Andre will subjugate her personal preferences, at least in the short term, to what is the best outcome, within the parameters provided by these proceedings for X – namely that if the court directs X to return, she will come to.
The only concession Mr Ricks makes in respect of any difficulty facing Ms Andre in having to return to Adelaide is that he is open to allowing her a significant period of time in which to do so. He is not in a position to provide her with any financial assistance. The underpinning of his case is that Ms Andre should have thought about these matters when she made what he would characterise as a precipitate decision to move, notwithstanding the court’s order to the contrary.
The applicable legal principles
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.
There are two 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.
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 protective concerns applicable to the children who are the subject of the relevant proceedings.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[2]
[2] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[3] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[4]
[3] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[4] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The primary considerations receive greater emphasis as a consequence of the objects and principles underpinning Part VII of the Act, which is the part of the legislation dealing with children. The court is directed to ensure the best interests of children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives [section 60B(1)(a)].
Some of the principles underlying this objective include the following:
·Children have the right to know and be cared for by both their parents, regardless of the status of the relationship between the parents concerned [section 60B(2)(a)];
·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, including grandparents; and
·Parents jointly share duties and responsibility concerning the care, welfare and development of their children.
Accordingly, the law emphasises that parents share responsibilities for their children and should, consistently with protective concerns, make major long-term decisions, concerning their child or children, consensually.
The legislation, amongst other things, defines a major long-term decision, as including a decision to change a child’s living arrangements to such an extent that it makes it significantly more difficult for the child to spend time with a parent [see section 4].
In this case, it is clear that Ms Andre made such a major long-term decision, concerning X, unilaterally of Mr Ricks. In addition, it is also clear that she did so when she was unequivocally aware of what Mr Ricks’ position was in respect of the issue. In addition, she chose to ignore the court’s specific order in respect of the issue.
Cases involving the actual or potential relocation of a child far away from one of his or her parents are particularly difficult for the court involving, as they do, competing legal principles relating to freedom of movement and the entitlement of children to have a beneficial level of relationship with not just one but both of their parents. For obvious reasons, issues to do with relocation invariably have very significant implications for the welfare of children, particularly young children, who cannot easily sustain relationships with parents over distance.
Accordingly, the Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.[5]
[5] See C & S [1998] FamCA 66
Relocation has implications for the quality and intimacy of the parental relationship a child has with the absent parent. These concerns are particularly pressing in respect of young or immature children. In this particular case, I bear in mind what was said by Boland J in Morgan & Miles.[6] Her Honour confirmed that the court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“…It [is] highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases”.
[6] Morgan & Miles (2007) FamCA 1230
In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.
As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode can be summarised as follows:
·consider the section 60CC matters relevant;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
Consideration
This is a very difficult case, which present no obvious or ready solution. I am not in a position to dismiss Ms Andre’s evidence that her psychological health will be seriously compromised if she is compelled to return to Adelaide against her wishes and this, in turn, will have serious implications for her capacity to parent X to the fullest extent of her abilities.
I accept, in general terms, that a deeply unhappy and frustrated parent is not likely to be an optimally functioning parent. However, at this stage, Ms Andre has not provided any expert evidence to support her assertions in this regard.
The evidence available to me indicates that she has lived in the (omitted) suburbs of Adelaide for significant periods in the past. Although her evidence is that her relationships with close family members, in Adelaide, are currently strained, she is not without some degree of support in the city.
It is a significant aspect of the case that, at an early stage of proceedings, Mr Ricks enjoined the court to prevent X leaving South Australia and X ostensibly agreed to such a course. A court order was made to this effect. Attached to the order was a notice indicated the legal consequences of the order and the obligations on the parties concerned [see section 65DA].
In simple terms, the notice attached to the orders indicated that Ms Andre was obliged to do everything a parenting order says. I accept that the court has a responsibility to ensure that parties fulfil the obligations resting upon them pursuant to parenting orders to which they are a party.
A reasonably significant component of this court’s interim work concerns cases in which a parent has unilaterally relocated a child interstate, often very far away from the other parent concerned. The court is enjoined to compel a parent to return a child to the place left behind. Very often, it is said that the party leaving had no viable alternative other than to leave.
Invariably these cases provoke extreme emotional responses in the parties concerned. The parent left behind feels harshly done by, particularly if the court subsequently ratifies any incident of parental self-help. In my view, the court must be vigilant in respect of such relocations and recognise that it is in the best interests of all concerned, particularly any child involved, that these issues be fairly and transparently dealt with so far as both parties are concerned.
The best forum for the court to decide whether or not a relocation should occur is at a final hearing. The court must be careful not to pre-empt the need for any such final hearing by determining the issue prematurely, at the interim hearing stage, particularly if such a course may render it problematic to reverse such a decision later. As such the authorities are clear – the court should only positively determine an issue involving unilateral relocation if there is some serious circumstance of emergency arising for the relocating parent.
I am not persuaded that Ms Andre has evidenced such compelling circumstances, particularly in the light of her apparent agreement to the injunction. Mr Ricks made it clear to her that he did not agree to X living outside of Adelaide. The thrust of Ms Andre’s evidence is that powerful personal reasons motivated her wish to move. I do not discount the legitimacy of the reasons, but in the context of the current matter, in my view, they fall short of a situation of emergency.
Although Ms Andre is now critical of many aspects of Mr Ricks’ parenting of X, she did not herself see fit to approach the court to ventilate those concerns. Nor did she indicate, in July of 2017, that she felt compelled to leave Adelaide because of issues of family violence, although I accept it is currently her case that Mr Ricks is attempting to coerce and control her by his institution of these proceedings.
In these circumstances, the court, in my view, must give close considerations to both the current and prospective benefits of X having a meaningful level of relationship with her father – the other of the primary considerations. In this context, I note that X is a child of tender years – not yet two years of age. Necessarily, she is far from being cognitively developed and, at best, has only a rudimentary understanding of concepts of time and distance.
In this context, the distance between (omitted) and Adelaide is a significant consideration. This distance will preclude Mr Ricks spending more frequent but shorter periods of time with her father than the current regime, which envisages a period of fortnightly overnight time. As previously indicated, Family Consultant Ms R has some reservations about this regime and does not necessarily consider that it will lead X to develop the best possible level of relationship with her father.
In addition, it is Mr Ricks’ position that over the longer term, it is unsustainable for Ms Andre to drive between (omitted), Adelaide and back every fortnight and the trip itself is not one calculated to be in X’s long term best interests because of the demands it will place on her, particularly when she starts attending crèche, kindergarten and the like. In my view, these are issues which need to be closely examined in the context of a final hearing. They are not ones which can be determined in these interim proceedings.
It seems clear that X’s major relationship, at this stage is with her mother. Her relationship with her father is still developing. Given her tender years, in my view, that relationship is more vulnerable to vicissitudes of distance than if X was older and her relationship with her father more secure. Again, in my view, these are issues for a final hearing.
Ms Andre’s reasons for wishing to remain in (omitted) cannot be described as being capricious or unreasonable ones. Similarly, given the circumstances in which Ms Andre left Adelaide, in my view, it cannot be said that Mr Ricks is behaving unreasonably, in the stance taken by him in these proceedings to date, given his understandable wish to have the best possible relationship with X. In short, the case is a very difficult one, which provides no obvious or easy solution.
One of the mechanisms through which the court can attempt to ameliorate the difficulties arising, at the interim hearing stage, in respect of a case with a relocation aspect, is for it to arrange for the final hearing to be expedited. I have endeavoured to provide the parties with the earliest possible hearing date available to me. I will also order a family report be prepared to be released to the parties on or before 31 March 2018.
After considering the various section 60CC factors applicable and the relevant authorities, I have come to the conclusion that, pending final hearing X should return to live in Adelaide. I appreciate the unpalatable choice such a decision will create for Ms Andre. I also appreciate that the decision will create obvious logistical difficulties for her, particularly in regards to terminating her existing living arrangements in (omitted) and making new arrangements in Adelaide.
However as Gummow & Callinan JJ pointed out in U v U
“…maternity and paternity always have an impact upon the wishes and mobility of parents; obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement having been incurred.”[7]
[7] U v U (2002) FLC 93,112 at 89,091
In my view, it is appropriate for Ms Andre to have until 28 February 2018 to conclude her arrangements for her and X to return to live in an area of within 10 kilometres of the (omitted) Post Office – that is an area within the (omitted) suburbs of Adelaide.
It is in such a context that Ms Andre must consider her position, pending trial. Necessarily being a parent creates a complex dynamic of responsibilities and obligations, not only in respect of any child concerned, but also vis-à-vis the other parent.
At this stage, I am concerned only with arrangements for X’s care pending trial. If Ms Andre elects to return to live in Adelaide pending trial, it is appropriate that X continue to live with her, otherwise the court must direct that the child live with her father, who is already resident in the (omitted) suburbs of Adelaide.
This decision is a provisional one, which will remain in place until the case is either consensually resolved or a court determination is made. It is not necessarily determinative of the final outcome. Many outcomes are potentially available – it being the responsibility of the court to weigh and assess the pros and cons of each such outcome, against the best interests of X.
Again, in U v U, Hayne J said as follows:
“If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.” [8]
[8] Ibid at 89,103
Whether, ultimately, it is reasonable, in the service of X’s best interests, for the court to consider whether Mr Ricks should move in tandem with Ms Andre to (omitted) or whether it is sexist for the court to place Ms Andre in a position where she must choose between having her child live with her and subjugating her own aspirations because of the risk of otherwise being seen as selfishly preferring her own interests to those of her child[9] remain issues for the final hearing.
[9] Ibid at 89,082 per Gaudron J
In my view, such considerations do not subjugate from the court’s responsibilities to enforce its orders and put in place an appropriate regime against which the final outcome may be determined in what remains a complex and emotional case.
Given the difficulties arising in the case and the untested nature of the evidence, in my view, it is not appropriate for the presumption of equal shared parental responsibility to be applied at this interim stage.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 15 December 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Remedies
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Procedural Fairness
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Natural Justice
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