Saif & Saif
[2020] FamCA 119
•28 February 2020
FAMILY COURT OF AUSTRALIA
| SAIF & SAIF | [2020] FamCA 119 |
| FAMILY LAW – CHILDREN – Interim Parenting – Relocation – Where the father seeks the children reside in the Sydney Metropolitan area within NSW – Where the mother seeks to relocate the children to the Melbourne area – Where the father seeks that both the father and mother be restrained and an injunction be granted restraining them from removing the children from the Sydney Metropolitan area – Consideration of best interests of the children – Where discussion of applicable principles – Where in best interests of the children to reside in Melbourne with the mother. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZL |
| Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8 Dundas & Blake [2013] FamCAFC 133 Eaby & Speelman [2015] FamCAFC 104 Franklyn & Franklyn [2019] FamCAFC 256 Godfrey & Sanders [2007] FamCA 102 Goode & Goode [2006] FamCA 1346 Lim & Zong [2020] FamCAFC 20 Marvel & Marvel [2010] FamCAFC 101 Mazorski v Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 MRR v GR [2010] HCA 4 Sigley & Evor (2011) 44 Fam LR 439 Vallans & Vallans [2019] FamCAFC 260 |
| APPLICANT: | Mr Saif |
| RESPONDENT: | Ms Saif |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Macdiarmid |
| FILE NUMBER: | PAC | 180 | of | 2019 |
| DATE DELIVERED: | 28 February 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 3 February 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Morris of Circle Bridge Legal |
| SOLICITOR FOR THE RESPONDENT: | Ms Wade of Fairfax Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mark Macdiarmid Family Law Specialist |
Orders
That all previous orders be discharged.
That Pending Further Order
That the mother have sole parental responsibility for the children X born … 2008, Y born … 2011 and Z born … 2014 provided always that the mother shall inform the father in a timely manner of any major long term decisions made by her in relation to the children, in particular, as to schooling and medical issues.
That the said children live with the mother.
That the mother be at liberty to relocate the children to the Melbourne area.
That the mother shall:
(a)Inform the father in writing within seven days from this date of the schools at which the children are enrolled and do all things necessary to authorise and direct that the father be entitled to obtain from the children’s schools such information as may be reasonably requested by him;
(b)Inform the father in writing within seven days of her email and phone contact numbers and keep the father informed in the event of any change; and
(c)Inform the father of any treating medical or related health practitioners who attend upon the children and do all things necessary to authorise and direct that the father be entitled to obtain from such practitioners such information as may be reasonably requested by him.
That the mother do all things reasonably necessary to facilitate telephone or other electronic communication between the children and the father on a telephone number or other facility nominated by the father with such communication to be on not less than two occasions each week at a time agreed by the parties and in default of agreement each Wednesday and Sunday evening between 6.30 pm and 7.00 pm.
That the father be liberty to apply as to the resumption of orders for supervised time with the children.
That these proceedings be transferred to the Melbourne Registry of this Court to be listed for Judicial Case Management at 10.00 am on Monday, 6 April 2020 before her Honour Justice Hartnett.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saif & Saif has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 180 of 2019
| Mr Saif |
Applicant
And
| Ms Saif |
Respondent
REASONS FOR JUDGMENT
The primary matter for determination is whether the applicant mother is able to reside with the subject children in Melbourne, she having unilaterally relocated with the children from Sydney to Melbourne recently.
The mother commenced proceedings seeking parenting orders in an Initiating Application filed 16 January 2019. In that application she sought final orders that she have sole parental responsibility for the children X born … 2008, Y born … 2011 and Z born … 2014 and, otherwise, subject to determination of risk, that the children spend only supervised time on a daily basis with the father.
The father filed a Response to the mother’s application on 23 January 2019 relevantly seeking final orders that the mother and father have equal shared parental responsibility for the children, that the children live with the mother and that the children spend defined time with the father that constituted substantial and significant time.
Proceedings came before a registrar on 22 January 2019 in circumstances where the children had been unilaterally retained by the father since 21 December 2018. Interim issues in relation to the children were then listed before the Senior Registrar for determination on 23 January 2019.
On 23 January 2019 the Senior Registrar appointed an Independent Children’s Lawyer (“ICL”) to represent the children and by consent orders, pending further order, were made, in summary, as follows:
a)That the father return the children to the mother by no later than 4.00 pm 23 January 2019;
b)That the children live with the mother; and
c)That the mother and father are restrained from attempting to remove the children from the Commonwealth of Australia and for that purpose the children were to be placed on the airport watch list.
Proceedings were again before the Senior Registrar on 20 February 2019 with the Court noting that the father was at that time currently a defendant in criminal proceedings in another court. The father had been charged with Stalk or Intimidate intending to cause physical harm to the wife. On 6 March 2019 that charge was dismissed but a two year final Apprehended Domestic Violence Order was made for the protection of the mother under the provisions of the Crimes (Domestic Violence and Personal Protection) Act 2007 (NSW).
Subsequently, a Child Responsive Program Memorandum was issued dated 15 April 2019.
On 28 May 2019 the father filed an Application in a Case seeking interim orders much the same as sought by him in his primary Response.
On 30 May 2019 proceedings were before the Court for judicial case management. Orders and directions were relevantly made as follows:
UPON NOTING THAT THE COURT IS INFORMED THAT THE FATHER FILED AN APPLICATION IN A CASE ON 28 MAY 2019 SUPPORTED BY AFFIDAVITS FILED THE SAME DAY, IT IS ORDERED THAT
(3)The father file and serve any further affidavit material to be relied upon by no later than Friday, 14 June 2019.
(4)The mother file a Response to the father’s Application in a Case together with any affidavit material to be relied upon by no later than Friday, 19 July 2019.
(5)The father’s Application in a Case be adjourned to the Senior Registrar’s interim parenting duty list to 9.30 am on Thursday, 25 July 2019.
(6)The Independent Children’s Lawyer have leave to forward to the Court in chambers a Minute of Proposed Consent Order in relation to the appointment of a Chapter 15 forensic psychologist.
(7)The father and mother each undertake (by provision of urine screen in accordance with the Australian/NZ Standard 4308:2008 or any subsequent approved standard) urinalysis for drug screening within 48 hours of a request to do so from the Independent Children’s Lawyer provided always that such request shall not occur more frequently than once per calendar month with such request to be communicated by email, SMS or facsimile transmission to the solicitor for the party or the party directly and provide copies of the results of the tests to the other party and the Independent Children’s Lawyer within 48 hours of receipt of same. For the purposes of this Order each party if unrepresented shall within 24 hours provide to the Independent Children’s Lawyer details of their mobile telephone number, email address if available and facsimile number if available.
THE COURT NOTES THAT
(8)The Court is informed today that the mother and father have facilitated the father having electronic communication by phone with the children Monday evenings and that the father seeks to have additional such communication with the children in circumstances where the mother acknowledges that there have been no difficulties with the current arrangement as it stands.
Subsequently, the father’s interim application was listed before the Senior Registrar on 25 July 2019. By consent and pending further order, orders were made, in summary, as follows:
a)That the children live with the mother;
b)That the children spend time with the father supervised at the B Contact Service;
c)That as soon as practicable the father file and serve a report from his treating psychiatrist,
d)That within 14 days the father provide to the ICL name and contact details of his psychiatrist and the ICL be at liberty to forward to that psychiatrist material produced on subpoena and the Child Responsive Program Memorandum dated 15 April 2019;
e)That Mr C, drug and alcohol expert, be appointed as a Chapter 15 expert for the purposes of preparing a report for the consideration of the Court;
f)That the mother prior to the next Court event file and serve a report from the child X’s treating paediatrician; and
g)That the parties attend a Legal Aid mediation conference.
The present application
Subsequently, on 24 January 2020, the father filed the present further Application in a Case relevantly seeking orders that the mother be restrained from removing the children from the Sydney Metropolitan area.
The mother filed a Response to the father’s interim application, in summary, seeking orders:
a)That she have sole parental responsibility for the children;
b)That the children live with her;
c)That she be permitted to relocate the children to the Melbourne area; and
d)That the children spend time with and communicate with the father in accordance with orders made 25 July 2019.
That application came before a registrar on 29 January 2020 and the application was listed for hearing before the Court on 3 February 2020.
On 3 February 2020 the interim proceedings were heard by the Court and judgment was reserved to a date to be fixed and pending judgment orders for the children’s time with the father were suspended.
Context
The mother is presently aged 32 and is in employment as a health professional. The father is presently aged 38 and asserts that he has been long-term unemployed.
The parties commenced cohabitation in May 2007 but were married later in 2007.
The children referred to above are the children of the parties’ relationship.
The parties, it appears, finally separated on 18 September 2018. The mother asserts that they separated in 2008 but that the father would thereafter come back and forth to their home and homes of family members.
At the interim hearing the husband relied upon:
a)his Application in a Case filed 24 January 2020; and
b)his affidavit filed 24 January 2020.
The mother relied upon:
a)her Response to the Application in a Case filed 28 January 2020; and
b)her affidavit filed 28 January 2020.
The mother’s evidence
Subsequent to orders made 25 July 2019 the mother attended at the B Contact Service on 31 July 2019 to complete an intake interview. On subsequent enquiry with the centre, the mother was informed that the father was unable to be contacted and later informed the centre that he was “trying to organise his finances”.
On 22 August 2019 the centre informed the parties and the ICL that due to difficulties with the father the place for supervised contact was on hold. Subsequent enquiries by the mother informed her that there had been no further contact between the centre and the father.
It is common ground that the child X is on the autism spectrum. On 13 August 2019 the mother organised for the child X to be assessed by an occupational therapist. A National Disability Insurance Assessment report was prepared dated 3 September 2019 and was provided by the mother to the child’s school.
On 17 October 2019 the mother was informed that the child X had been suspended from school. He returned a few days later and was thereafter suspended again.
The mother met with the assistant principal at the child’s school and was informed that options for the child included partial attendances at school between 9.00 am and 11.00 am three days per week, arranging school assisted travel through the education department to have the child travel directly to school as the child was not coping with travelling to school with other children, or changing schools to a school that was more resourced in terms of behavioural support.
The mother made enquiries and the child’s enrolment at a school at Suburb D was approved on 8 December 2019, however, assisted travel to and from school was declined. Otherwise, the child was offered long day care from 11.00 am to 5.00 pm which the mother could facilitate with assistance from her parents for some time.
The mother is the primary financial support for the three children of the parties’ relationship with the father providing to her no financial assistance whatsoever.
Regrettably for the mother, her parents sold their large five bedroom property at Suburb K that was occupied by the mother and she was, otherwise, unable to afford rent or to purchase a property in Sydney. Otherwise, she has no extended family support that could provide accommodation for herself and the children.
The wife’s parents purchased a property in Melbourne which was nearby to the mother’s brother. The mother’s parents informed the mother that she and the children were welcome to stay in their property in Melbourne particularly as they were going to be absent overseas for six months.
The mother’s brother is self-employed in Melbourne and the children Y and Z would be able to attend the school attended by his son and he would facilitate the pickup and return from school each day. This would facilitate the mother being able to get the child X to and from school in Melbourne.
By letter dated 10 December 2019 the mother’s solicitors informed the father of her proposed move to Melbourne and her proposed arrangements for the children’s ongoing schooling. It was only on 14 January 2020 that the father’s solicitor informed the mother that he had been saving money so as to facilitate the commencement of supervised time. It is the mother’s understanding that the B Contact Service now has approximately a four to six month wait to commence supervised time.
With assistance from X’s school in Sydney, arrangements were made with the Department of Education Victoria and subsequently the mother was able to obtain an enrolment for the child at the Special School, nearby to where the mother would live. The mother is delighted with the facilities available to the child at the school. The school attended by the other two children is also in Suburb E.
The mother is, otherwise, able to transfer her employment to Melbourne and she will be further supported by her parents on their return from overseas.
The mother has endeavoured to facilitate the children speaking with the father each Monday and Thursday. On occasions he has failed to answer his phone.
The mother asserts that she would endeavour to comply with orders made 25 July 2019 for the father to have supervised time by travelling from Melbourne to Sydney as required with the children.
The mother is currently assisted by social workers in Melbourne and the child’s National Disability Insurance Scheme (NDIS) grant provides her with additional funding assistance for X’s transition to his new school. The NDIS will also provide home services and occasional respite and travel.
Should the mother be required to return to Sydney as sought by the father, schooling arrangements for the child X would be most uncertain and impact on her ability to remain in employment. Otherwise, the mother’s financial circumstances are such that she is unable to afford independent living apart from her parents.
The mother asserts that the father has been long-term unemployed yet pays $500 per week for the accommodation occupied by him.
The father’s evidence
The father expresses his regret for his earlier withholding of the children from the mother that necessitated early interim orders as referred to above.
The father asserts that he has been unemployed due to a back injury. Previously, he had been self-employed. He asserts a close engagement with the children whilst the parties cohabited.
He spent time with the children unsupervised overnight in the three month period from separation to 21 December 2018.
He complains that the mother precipitated an Apprehended Violence Order being taken out against him. He was, in fact, charged by the Police.
As to the B Contact Service, the father asserts that he had been appropriately in touch with the centre but that they had not been in contact with him. He was informed by the centre in January 2020 that there would be a wait of some months before supervision could commence.
He, otherwise, complains that notwithstanding a mediation proposed by the ICL in relation to the mother’s proposed relocation, that she unilaterally moved herself and the children to Melbourne.
The father proposes that the children remain in the Sydney Metropolitan area until further order and that the parties engage in mediation. He asserts that he would be able to provide some respite care for the mother. Yet he at present is only able to see the children under supervision. He, otherwise, expresses concern that the child X would be removed from his current treaters and healthcare providers.
The father does not contend that he is unable to relocate to Melbourne in circumstances where he asserts no significant ties to Sydney.
The CAPIA Report: Exh “C”
The Child Responsive Program Memorandum is dated 15 April 2019 following meetings with the parties and the children on 25 March 2019. Significant time has passed since the report. It is to be noted that the report was prepared before the more recent ructions in relation to X’s schooling.
The family reporter correctly notes that there was a current two-year Apprehended Domestic Violence Order protecting the mother from the father. The mother reported that the father had stalked her at her workplace and threatened her and her family. She further complained that, otherwise, the father had perpetrated family violence and misused prescription drugs.
As to the child X, the mother reported that he is heavily dependent on routine and starts biting himself and ripping his clothes if he is anxious. The child is no longer considered non-verbal but his speech is extremely limited and is confined to a number of stereotypical phrases. The child also displays echolalia (the precise repetition, or echoing, of words and sounds).
The father reported that initially he did not accept the child’s diagnosis of autism.
The mother reported that the child Y then in year two had some behavioural problems and can be defiant and oppositional at home. The child has had intervention speech therapy and has had grommets inserted into his ears. The mother reported that the child Z had commenced kindergarten and that she was very clingy after staying with the father in the months after separation.
The family consultant interviewed Y and Z. The child Y presented as a pleasant and lively boy who appeared reluctant to speak about his family. As to his father he reported that he would like to see him “just for a little while” but that it would be good to see him. The child Z presented as a bright and chatty young girl who spoke enthusiastically about school. She spoke of living with her mother and her maternal grandparents. The child was clearly missing her father.
The mother reported to the family consultant incidents of alleged family violence including the father hitting and punching her on a number of occasions. In 2014 the police attended at the home in relation to a Firearms Prohibition Warrant and subsequently raided the property. The threats by the father reported by the mother were threats to kill her.
For his part, the father denied any family violence perpetrated against the mother.
The mother asserted that the father mixes alcohol and prescription medication causing him historically to have two seizures. She asserts that he abuses his prescribed medication and obtains other prescription medicine illicitly. The father reported that he is prescribed OxyContin and Panadeine Forte due to his surgeries and that he, otherwise, has Xanax and Valium prescribed by his doctor in Suburb F. He denied any current use of steroids.
The mother reported that the father had been referred to a psychologist and a psychiatrist on numerous occasions but does not consult them. She reports that the father has attended hospital due to panic attacks. The father acknowledged that his general practitioner had referred him to a psychologist after separation but he did not attend, deciding that his problems would ultimately resolve.
Otherwise, the mother complained that the father was a member of a motorcycle club, although the father reported to the family consultant that he had left that organisation in 2014.
As to child’s safety and well-being the mother reported that the father does not understand X’s condition and physically disciplines the child. She also complains that he is insufficiently attentive to the needs of the children when they are with him.
The father complains that the mother has struck the children across the face on many occasions causing bruising. He did not suggest that he had sought any medical attention for the children or had reported that circumstance to the authorities.
The mother complained that the father was not paying the correct amount of child support as he works for the paternal uncle who pays him in cash.
The family consultant noted that in interview the father appeared preoccupied with what he regarded as the mother’s “betrayal” and spoke at all times in an agitated fashion.
In evaluation the family consultant expressed concern as to the mother’s allegations of family violence opining that if they were found to have veracity they would be concerning and would represent violence of a coercive and controlling type. The family consultant expressed significant concern as to the mother’s allegations as to the father’s drug use and recommended testing.
As to the child X, the family consultant reported that his “care will represent an ongoing challenge in parenting and it is likely that he will require the lifelong involvement of the caring adult. It is important that his needs for predictability and routine are taken into account and this may mean that arrangements for him are different from those of the other children”.
Objective Evidence
Documents produced on subpoena by the New South Wales Police Service (Exh “G”) reveal a long engagement of that service with the father dating back to 1994. A more recent incident on 15 October 2018 reveals the police concerns in relation to the father, he being subject to a Firearms Prohibition Order and links to the motorcycle club. The father on that day had spoken to the police at 3.00 am in company with a female recently released on parole. The police report notes “based on the antecedents and reason for being together, along with the time of night, police had reasonable cause to suspect they were together to engage in drug activity”. An earlier incident on 18 March 2017 reveals the father was spoken to by the police. Police checks revealed the father’s extensive criminal history including a wide array of intelligence holdings pertaining to the supply of drugs, possession and use of firearms and involvement in murder. The mother’s complaints as to the father’s intimidation and threats to her are supported by the police documents.
The file produced by Suburb H Local Court (Exh “I”) provides a copy of the final order Apprehended Domestic Violence order made by the court on 6 March 2019. By consent the order provided that the father not assault or threaten, stalk, harass or intimidate or intentionally or recklessly destroy or damage property that belongs to the mother or any person with which she has a domestic relationship. Otherwise, after hearing evidence the father was subject to a further order not to go within 100 metres of any place where the mother lives or works and specifically premises at G Street, Suburb H and J Street, Suburb K.
The ICL
The ICL supports the orders sought by the mother in circumstances where the child X has significant issues.
The ICL described the father’s position as a “dog in a manger” in circumstances where he provides no financial support and has made no efforts to properly implement interim orders for supervised time made many months ago. The ICL supported sole parental responsibility being delegated to the mother provided that in terms of educational health she was obliged to inform the father of her decisions or, otherwise, there simply be no order as to the allocation of parental responsibility such that the statutory provisions remain in place.
The Law: Interim parenting
In Goode & Goode [2006] FamCA 1346, the Full Court set out the pathway to be followed in saying that the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and must 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.
Since Goode (supra), s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) has been enacted which provides that a court may give reasons in short form for a decision it makes in relation to an interim parenting order. It is to be presumed that the legislative intent of the new s69ZL was to relieve judicial officers of the task of journeying in their reasons fir judgment through the legislative maze that now leads to court to a conclusion as to the best interests of children.
Notwithstanding the presumed intent of s69ZL a judicial officer has obligations to give proper and adequate reasons no matter how truncated.
In Sargent & Selwyn [2017] FamCAFC 228; (2017) FLC 93-812 the Full Court (Strickland, Aldridge & Gill JJ) said:
In Wainohu v New South Wales (2011) 243 CLR 181 at 213–214 (“Wainohu”) French CJ and Kiefel J said:
54.The centrality, to the judicial function, of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised. In a passage from the first edition of Broom’s Constitutional Law, published in 1866, the author said:
“A public statement of the reasons for a judgment is due to the suitors and to the community at large – is essential to the establishment of fixed intelligible rules and for the development of law as a science ... A judgment once delivered becomes the property of the profession and of the public; …”
The Full Court in Mareet & Colbrook [2019] FamCAFC 15 said:
26.It is apposite to remember at this point that to give reasons is an obligation of the exercise of the judicial function and reflects judicial accountability (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). That obligation however is owed to the parties and is not discharged at the option of the judge but the duty may be expressly relieved by the parties (see Kyriakos & Kyriakos [2013] FamCAFC 22; (2013) FLC 93-528 (“Kyriakos”)).
…
29.…it is important to note what was said by Forrest J in Kyriakos at [72] which was later endorsed by the Full Court of the Family Court in Quant & Bonde [2018] FamCAFC 150; (2018) FLC 93-853 at [19]:
The process of arriving at a discretionary judgment is a single self-contained and indivisible exercise. The provision of reasons, delivered orally or in writing, is merely the articulation of that process for the benefit of the parties and the public administration of justice. …
Notwithstanding the legislative invitation to deliver short reasons for judgment it is still necessary to refer to the applicable legislative provisions and the statutory considerations that guide the court’s determination. Such approach will reveal the weight attached to same and how they have guided the court’s determination for the benefit of the parties.
Regrettably in being obligated to do so the invitation to deliver short reasons is mostly illusory.
Interim hearings
In Marvel & Marvel [2010] FamCAFC 101 the Full Court discussed the difficulties in interim hearings associated with making findings on contested evidence in the following terms:
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
122.Later, at paragraph [100] their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. 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.
In Eaby & Speelman [2015] FamCAFC 104 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:
18.... that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
The Full Court in Eaby & Speelman went on to say (citing Marvel supra) that findings (in disputed interim proceedings) should be couched with great circumspection.
A word about the question of relocation
Relocation is but one aspect of parenting. It falls to be determined in the best interests of the children.
Recently in Franklyn & Franklyn [2019] FamCAFC 256 the Full Court took the opportunity to review the applicable principles in the context of the subject interim relocation appeal. The Full Court said at [27] – [28]:
There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children (see AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”) at 196, 206, 207-208, 210). The tension at the intersection of those conflicting interests is even greater when an order is sought, not just to restrain one parent’s move further away, but to compel the parent who has already moved away to return and establish a new residence closer to the other parent.
While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIF at 207, 225, 230; U v U [2002] HCA 36; (2002) 211 CLR 238 (“U v U”) at 282). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children (see AMS v AIF at 223-224, 231-232; Sampson and Hartnett (No.10) [2007] FamCA 1365; (2007) FLC 93-350; Zanda & Zanda [2014] FamCAFC 173; (2014) FLC 93-607 at [132] - [136]). Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests (see U v U at 262).
The Law
The relevant principles in relation to parenting and interim proceedings are well settled Goode (supra). The High Court in MRR v GR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub‑s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)];
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
The presumption may also be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA (4)]. Such a rebuttal requires proof or evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: Dundas & Blake [2013] FamCAFC 133, Vallans & Vallans [2019] FamCAFC 260.
In the event that the Court makes an order that the parties have equal shared parental responsibility, the Court must:
a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents: s 65DAA(1).
If no order is made for equal time then the Court must:
d)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
e)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
f)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents: s 65DAA(2).
Equal or substantial and significant time is not sought by either party. Thus, the question of time with the non-resident parent is to be determined by the children’s best interest considerations.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
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.
The Full Court recently confirmed in Lim & Zong [2020] FamCAFC 20 at [33] that:
“whilst the limitations of an interim hearing preclude a judge from making concluded findings of fact on disputed issues and untested evidence, s 60CG of the Act – the requirement to consider the risk of family violence – is not constrained in its operation despite that inability”.
The parties’ allegations one against the other are reported by the family consultant. The mother’s assertions are supported by the Police documents evidencing her complaints and the father’s own consent to an Apprehended Violence Order (“AVO”) that inherently conceded that the mother has a reasonable fear of a domestic violence offence being committed. There is a risk that such conduct may occur in the presence of the children particularly if the mother remains in Sydney notwithstanding the ongoing protection of the two year AVO.
In this matter, by reason of the discussion above, there are reasonable grounds to believe that the father has perpetrated family violence against the mother. The resumption as to equal shared parental responsibility shall not apply.
The remaining primary consideration focuses upon what orders can be made to maintain a meaningful relationship between both parents and the children.
There is no issue that the children are to remain in the primary care of the mother. The mother needs proper secure accommodation and arrangements in place for her children so that moving forward she can facilitate a meaningful relationship with the children including the ability to address their significant needs. At present there are orders for the father to have supervised time. Such has not taken place. It can occur in Melbourne as well as in Sydney. That remains in the power of the father to implement same appropriately.
The reality is, in the context of this interim hearing, that the Court is obliged to have regard to the maintenance and promotion of the children’s relationships with both parents. A relationship may be less than optimal but nonetheless meaningful: (Godfrey & Sanders [2007] FamCA 102 at [33]-[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182]).
In Mazorski v Albright[2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The children have a strong established relationship with the mother who presents as the children’s primary carer at present. The children, it appears, by reason of her primary role have a settled attachment with the mother. Should the mother be required to return with the children to Sydney, her circumstances are uncertain. She has no funds to afford rent or to purchase a home for the accommodation of herself and the children. She can expect no support from the father. He has proffered no assistance for housing or child support. She would be proximate to the father in circumstances where there is a final AVO order for her protection. Such issues can only impact on her ability to parent and sustain a meaningful relationship with the children.
The father, it is asserted, has been in and out of their lives and at present has the benefit of a supervised contact order although suspended pending judgment. There is no contention by him that such arrangement cannot be made in Melbourne.
The Additional Considerations: s 60CC(3)
Section 60CC(3) sets out the additional considerations. Regard has been had to all. More relevantly:
a)The views expressed by the children are at best ambivalent and represent the views of young children conflicted by the separation of parents that they both love. The High Court said recently in Bondelmonte v Bondelmonte (2016) 259 CLR 662 at [34] – [35]:
… In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child [something approaching a decisive status], but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child’s best interests.
The terms of s 60CC(3)(a) itself may be taken to recognise that, whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long term implications of separation from one parent or the child’s siblings. Section 60CC requires that attention be given by the court to these matters.
It is thus difficult to ascribe any significance to the views expressed by the children as set out above with, clearly, orders to be made that are in the children’s best interests notwithstanding.
b)The children’s relationships with the parents are considered above. Otherwise, the children have a significant relationship with the maternal grandparents.
c)This consideration favours the children remaining with the mother pending final hearing. She has assumed responsibility for making decisions as to the children’s long term issues where the father has failed to avail himself of time with the children albeit supervised.
ca)The mother is the primary support for the children with assistance from her parents. The father provides no financial support in circumstances where there is some suspicion as to his true position.
d)The mother has acted unilaterally in relocating to Melbourne. Her reasons are practical and cogent in her belief that the move was in the best interests of the children, especially X. Requiring the mother to again move the children to circumstances of uncertainty in Sydney is not in the children’s best interest. The children will be away from their supportive maternal grandparents, the mother’s brother and his family in Melbourne. The father does not complain that he is unable to see the children in Melbourne.
e)The difficulty and expense of the father seeing the children under supervision in Melbourne is not the subject of evidence. It is difficult to place weight on this consideration.
f)The mother presents as having the capacity to meet the disparate needs of these children absent any assistance from the father. Otherwise, his capacity in this regard is untested and subject to adverse allegations by the mother as to violence, drug abuse and mental health issues.
g)There are allegations of family violence. There is an existing final AVO orders that by inference in the father’s consent to same reflects the mother’s fears. He is presently restrained from approaching her or the children except by reason of this Court’s orders.
h)See above.
i)These are interim proceedings and clearly the Court is unable to make orders in this context that would lead to the institution of further proceedings.
Parental responsibility
As discussed above the presumption shall not apply and it is clear that in the best interest of the children the mother should have sole parental responsibility pending further order.
It is, otherwise, appropriate in the best interest of the children that orders be made that provide for the mother to be able to relocate the children to the Melbourne area. She will be required to inform the father as to any long term major decisions made by her relating to the children.
It is appropriate that the father be at liberty to apply as to arrangements for supervised time with the children in Melbourne.
It is, otherwise, appropriate that these proceedings be transferred to the Melbourne Registry of this Court for judicial case management at an early date for consideration of the appointment of a local ICL, a new Single Expert and the question of the father’s time with the children.
Orders will be made accordingly.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 28 February 2020.
Associate:
Date: 28 February 2020
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