Sedgwick & Lind

[2013] FCCA 734

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEDGWICK & LIND & ANOR [2013] FCCA 734

Catchwords:
FAMILY LAW – Parenting – interim relocation.

Legislation:

Family Law Act 1975, s.60CC.

Cases cited:
Goode & Goode [2006] FamCA 1346

Morgan & Miles [2007] FamCA 1230
MRR v GR [2010] HCA 4
C & S [1998] FamCA 66

Applicant: MR SEDGWICK

First Respondent: MS LIND

Second Respondent: MRS SEDGWICK

File Number: SYC 4647 of 2008

Judgment of: Judge Altobelli

Hearing date: 21 June 2013

Date of Last Submission: 21 June 2013

Delivered at: Sydney

Delivered on: 24 June 2013

REPRESENTATION

Counsel for the Applicant: Mr Speirs

Solicitors for the Applicant: Speirs & Associates

Counsel for the First Respondent: Mr Hill

Solicitors for the First Respondent: Elizabeth Fleming & Associates

Solicitors for the Second Respondent: Ross A Clarke & Associates

Independent Children’s Lawyer: Phillip A Wilkins & Associates

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. Within 24 hours the Mother must notify my Associate and the Independent Children’s Lawyer of the precise address at which she currently resides, on the basis that this address is not disclosed to any other party in these proceedings.

2. No later than Wednesday 3 July 2013 at 5:00pm the Mother must return or cause the child [X] born [in] 2007 to be returned to an address in the Sydney Metropolitan Area, such address to be notified to my Associate and to the Independent Children’s Lawyer, and on the basis that such address is not disclosed to any other party to these proceedings.

3. Pending [X]’s return to Sydney in accordance with these Orders the Mother is restrained from doing or facilitating, or causing or encouraging any third party, from changing the address at which [X] currently resides.

4. No later than 4:30pm on Friday 28 June 2013 the Mother must notify my Associate and all parties to these proceedings whether she intends to return to Sydney with [X] pursuant to these Orders, and if so provide particulars of how and when such return will be effected.

5. Pursuant to s.67Q of the Family Law Act 1975 a recovery order issue directed to the Marshal of the Federal Magistrates Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child [X] born [in] 2007 and to return/deliver the said child to the Second Respondent and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found..

6. If the Mother returns to Sydney with [X] in accordance with these Orders then the Orders made by consent on 17 February 2011 continue to apply.

7. If the Mother elects to not return to Sydney with [X] then the Orders 1 and 2 of the Orders of 17 February 2011 are suspended, the paternal Grandmother is to have sole parental responsibility for [X] and [X] is to live with her paternal Grandmother. The Father’s time with [X] will continue to be governed by the Orders of 17 February 2011.

8. The Mother has leave to relist before me on 72 hours’ notice as regards:

   (a)An application for her to spend time with and communicate with [X]; and

   (b)An application for spousal maintenance, interim property settlement, injunction or child support provided she has not received by Friday 28 June 2013 the payment of $5000.00 made by the Husband to the Child Support Agency by way of reduction of arrears of child support.

9. The Independent Children’s Lawyer:

   (a)Has leave to relist on 72 hours notice;

   (b)Has leave to issue more than five subpoenas; and

   (c)Is requested to pursue enquiries from all available sources into the nature of the Father’s relationship with his daughter [Z] and the circumstances of her being in Korea.

10. Within 24 hours of the date of this order, the Father forthwith attend upon on a General Practitioner to obtain a referral to a reputable pathologist in the local area for the purpose of undertaking supervised urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2001: “Procedures for the specimen collection and the detection and quantitation of drugs of abuse in urine” to test for the presence of: illegal drugs and/or substances; amphetamines, cannabis or cocaine.

11. The Father undergo such supervised urinalysis on occasions as requested by the Independent Children’s Lawyer, such requests to be:

    (a)made in writing; and

    (b)with a frequency no greater than one test in every 4 week period.

12. Any test so requested must:

    (a)be completed within 24 hours of receipt of the Father or his solicitor of such a request;

    (b)be verified by a Certificate which includes a temperature endorsement;

    (c)be carried out at the Father’s cost.

13. A copy of any Certificate issued consequent upon a test so requested shall be provided to the solicitors for the Mother within 48 hours of receipt of the Certificate by the person undergoing the test.

14. The Father do all things necessary to authorize the results of such testing to be made available to the Independent Children’s Lawyer.

15. Pursuant to section 62G(2) of the Family Law Act1975 the parties and the child of the relationship attend upon Dr G on a date and at times to be advised for the purposes of the preparation of an updated Family Report addressing the issues identified in s.60CC of the Act.

16. The parties send copies of all of their court documents to the family report writer within 3 days of being requested to do so by the family report writer.

17. The Family Reporter have regard to affidavits filed in the matter at the date of preparing the report.

18. I DIRECT the legal representatives for both parties or the parties themselves to confirm with the report writer no later than ten (10) days prior to the scheduled interviews that the interviews will proceed on the dates allocated.

19. I DIRECT the Independent Children’s Lawyer to notify the Family Reporter of the hearing date and request the Family Reporter be available, if required by the parties, on the first morning of the hearing.

20. The costs of all parties be reserved.

21. The matter be set down for 3 day Final Hearing on 2-4 December 2013 at 10:00am.

22. The matter be adjourned to 2 July 2013 at 9:30am for mention.

23. Leave be granted to the Independent Children’s Lawyer to attend by telephone on the next occasion, provided they contact my Associate on 1300 352 000 or [email protected] as soon as possible to provide a contact telephone number.

24. The first return date for the Application for Contravention be vacated and the contravention be listed on 2 December 2013 at 9:30am.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 4647 of 2008

MR SEDGWICK

Applicant

And

MS LIND

First Respondent

MRS SEDGWICK

Second Respondent

REASONS FOR JUDGMENT

1. In the matter of Sedgwick & Lind, I provide the following oral reasons for judgment.  This case is about [X], born [in] 2007, who is five years old.  I need to decide on an interim basis where she lives, with whom she lives and how much time she spends with her mother, father, paternal grandmother and step-siblings. 

2. [X] lives with her mother in Adelaide.  It is common ground that the mother unilaterally, and contrary to an order made 17 February 2011, relocated with [X] from Sydney to Adelaide, on or about 23 February 2013. 

3. The applicant in this case is [X]’s father.  He proposes that [X] return to Sydney, preferably with her mother, and that the parenting arrangements in place on 17 February 2011 be restored, at least on an interim basis. 

4. The first respondent in this case is [X]’s mother.  She wishes to remain in Adelaide with [X], and she proposes that [X] spend time with both the father and paternal grandmother at a contact centre in Adelaide, and subject to certain terms and conditions as set out in her response.  She also, in effect, seeks that the watch list order in place be lifted, and that [X] have a passport, and that she and [X] be at liberty to travel internationally.

5. The second respondent, the paternal grandmother, seeks orders that, in effect, would see the continuation of the existing parenting arrangements.  She too would prefer that the mother return to Sydney with [X].  The Independent Children’s Lawyer proposes that [X] be returned to Sydney, that the mother accompany her, and that the orders of 17 February 2011 be reinstated.

6. In the annexures to these reasons, I reproduce the orders sought by the parties where the same was set out in a minute or in an application, or a response.  Through her counsel, the mother indicated to the Court that if [X] was ordered to be returned to Sydney, she – that is to say, the mother – would not be returning with her.  She could not articulate to the Court what proposal for [X] to spend time and communicate with her she preferred in this scenario.

7. The mother’s position of non-return to Sydney resulted in the paternal grandmother proposing that [X] live with her on an interim basis, and that the orders for the father to spend time with [X] continue.  This proposal was supported by both the father and the Independent Children’s Lawyer.

8. As can be appreciated, there are, therefore, many proposals before the Court.  Indeed, as the submissions progressed, it was also obvious that various conditions could be imposed on [X]’s return to Sydney, some of which might address the mother’s concerns about herself returning.

9. There are many issues in this case, and I propose to use the list of considerations in section 60CC of the Act as a template with which to discuss and assess the evidence before the Court. It must be recognised that these are interim proceedings, and it must be recognised that an interim determination does not predetermine a final one. The evidence is untested. What expert evidence there is, is either old, for example previous family reports, or limited, such as the section 11 Family Consultant’s CDC memorandum, and in any event, is untested.

10. Nonetheless, the present events occur in a historical framework that needs to be set out.  The current final orders in this matter are dated 17 February 2011, and incorporate them verbatim into these reasons.  It should be noted that the father, mother, grandmother and [X] were all represented.  Indeed, [X] was represented by Ms Renshall, one of the most experienced and highly regarded Independent Children’s Lawyers in Sydney.  The mother was represented by Mr Mockler, a highly experienced and senior family lawyer.

11. It is also apparent that the consent orders were informed by, and consistent with, the recommendations contained within two reports of Dr G, dated 21 January 2011 and 9 February 2010.  It is also apparent that when one compares the mother’s proposals, as described in the family report dated 21 January 2011 at paragraphs 23 to 26, and the consent orders entered into, whilst the mother’s proposals are not entirely acceded to, her wishes certainly can be seen reflected in the orders.  I record these matters to explain why I am deeply sceptical, even at an interim hearing, of the mother’s protestations, subtle and not so subtle, through her counsel, about the advice and the representation she received at the time. 

12. The orders of 17 February 2011 provided that the mother have sole parental responsibility and [X] live with her.  [X]’s time with the father was to be supervised.  [X] was to have time with her grandmother.  Once [X] started school, and this was only this year, [X]’s time with her father and grandmother was to progress to each alternate weekend, 10 am Saturday to 6 pm Sunday and on the basis that [X]’s time with her father always be in the presence of her grandmother. 

13. This is significant.  It is common ground that [X]’s first weekend time pursuant to this order took place on 9 and 10 February 2013.  It is common ground that that is the only weekend contact pursuant to that order, and indeed, it is the last time that either the father or the grandmother has seen [X].  Moreover, it is common ground that the mother unilaterally relocated to Adelaide on 17 February, one week later. The orders also provide, quite explicitly in order 10, that the mother not move outside a 30 kilometre radius of the Sydney CBD. 

14. With this history in mind, the evidence before the Court consisted as follows:  There was an affidavit for the father, affirmed 5 February.  There were a number of affidavits sworn by the mother:  8 April 2013, and 13 June 2013.  The mother also provided a financial statement of 8 April.  The paternal grandmother provided an affidavit of 12 June.  There was a section 11F child dispute conference memorandum.  In addition, the Court had before it the reports of Dr G, the dates of which I have had reference to. 

15. The applicable law in a case such as this is set out in Part VII of the Family Law Act. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of that section and the way to proceed and I will incorporate into these reasons a number of paragraphs from the Full Court’s judgment.

    68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, 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 would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

    …

    72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

    …

    82. In an interim case that would involve the following:

    (a) identifying the competing proposals of the parties;

    (b) identifying the issues in dispute in the interim hearing;

    (c) identifying any agreed or uncontested relevant facts;

    (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

    (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

    (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

    (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

    (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

    (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

    (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

16. The Full Court’s decision in Morgan & Miles [2007] FamCA 1230 also contains a number of passages that deal with the question of interim relocation, including a reference to another Full Court decision of C & S [1998] FamCA 66.

    82. It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.
    83. I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.
    84. The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.
    85. In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph. Whilst lengthy, it aids understanding to set out the relevant passages from Goode:

    71. The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.
    72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
    73. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).

    86. I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to 
    s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.
    87. As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
    88. It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it 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 and S remain apt and relevant to determination of these cases.

1. I will also incorporate a number of passages from the High Court’s decision in MRR v GR [2010] HCA 4, where the High Court talks about the reality of the situation.

   Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b)requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.

2. In addition, Mr Hill of counsel referred me to a number of cases, though not necessarily all are helpful in the present context of an interim hearing. As foreshadowed, I intend to use section 60CC as the template to consider and assess the evidence and the submissions made.

3. I start off by considering meaningful relationship.  I do not accept the mother’s contention that [X] will have a meaningful relationship with either her father or grandmother on her proposals for supervised time at a supervised contact centre in Adelaide.  Quite apart from the fact that there is simply no basis for this restriction, a matter that I will discuss below, it is not enough time, it is not frequent enough, and the reality of the situation is that a meaningful relationship is unlikely to be sustained in the long-term with the mother and child in Adelaide, and the father and grandmother in Sydney, in the context of this case.

4. With great respect to the mother and those who advise her, the mother’s proposal for communication and contact is superficial, is ill-considered, and is unrealistic on the available evidence.  On the father, grandmother and Independent Children’s Lawyer’s proposals, which see the original orders reinstated, [X] gets to have a meaningful relationship with the father, the grandmother, and [Y] her step-sister, as well as the mother if she chooses to return.

5. Of course, if the Court orders [X]’s return, but the mother chooses not to herself return, there is a real risk of the loss of [X]’s meaningful relationship with her mother.  This would be tragic for both the mother and [X].  However, this would be the mother’s choice, the reasonableness of which needs to be assessed by the rest of the evidence.  The Court records here its deep concern that the mother was so readily able to instruct her counsel she would not return to Sydney if [X] was so ordered, but could not, for example, propose what contact or communication she herself had with her daughter if she does not return.

6. It is abundantly clear that everyone in this case wants and urges the mother return with [X] to Sydney, if [X] is ordered to return.  Whether she does so is her choice, but it will have consequences for [X]. 

7. It is the mother’s case that it was, at least in part, but implicitly a very significant reason for relocating to Adelaide, that it would protect both [X] and herself from the risk of violence and abuse from the father, and also, supposedly, from the grandmother.  As the Court rejects this contention, it is important to closely examine what evidence the mother relies on.  To the extent that the mother relies on any matters of fact that existed as at the date of the consent orders on 17 February 2011, as a reason, even partly, and whether implicitly or explicitly, for the unilateral relocation, the Court rejects the same.

8. All of the mother’s concerns about the father, as at 17 February 2011, are satisfactorily dealt with in the orders of 17 February.  For example, those orders provide for [X]’s time to be supervised, the father is not to attend changeovers, the mother was to have sole parental responsibility.  All the mother was obliged to do in relation to the father was to keep him informed of certain matters pertaining to [X]’s health and education.  It is true to say that at that time there were concerns about the father’s behaviour towards his daughter, [Y] – that is [X]’s stepsister – and the Departmental intervention that resulted in [Y] being placed in the grandmother’s care.  But these were matters known to the mother, the Independent Children’s Lawyer, and the Court at the time the consent orders were made.  The consent orders actually reflect those concerns.

9. The Court made the consent orders on 17 February 2011.  The Court was satisfied the arrangements contained therein adequately protected the mother and [X].  Nothing has changed from the Court’s perspective.  More importantly, the mother consented to these orders.  The Court is entitled to infer, and does in fact infer, that the mother, at all relevant times, considered the orders appropriately protective of her and [X], and that they reflected [X]’s best interests at that time. To the extent, therefore, that either expressly, or impliedly, the mother seeks to rely on facts in existence before 17 February 2011, as justifying her actions in February 2013, the Court cannot accept the same.  The focus must, therefore, be on events after February 2011. 

10. On the mother’s own evidence, she complied with these orders until February 2013, a period of two years and [X] had contact with her father, as per the orders.  Interestingly, this occurred notwithstanding the matters to which I will now make reference.  In her affidavit, the mother refers to alleged incidents on 20 February 2011, 28 March 2011, 2 May 2011, 19 June 2011, 13 November 2011, 30 April 2012, 13 and 20 January 2013.  There can be no doubt that these events form at least part of the basis of the mother’s concerns about the risk of harm to [X].  Curiously, the mother does nothing about these events when they occurred.  She does not cease contact.  She does not ask her lawyer to do anything.  There is no application to the court.  Indeed there is nothing.

11. An inference can be drawn as that whatever the concerns the mother had about each of these events they were neither individually nor cumulatively worth doing anything about before February 2013.  From the court’s perspective it is not surprising she did nothing because the evidence she advances is at best flimsy and equivocal.  Thus, for example, the injuries allegedly suffered by [X] during her time with her father may well have been referable to the child’s accidental play as to anything else. 

12. The father denies hitting her.  Mandatory reports were made.  The father is a known person to the Department.  No action was taken.  It could not be said that on the evidence adduced by the mother there is any unacceptable risk of abuse to [X] from her father or grandmother.  Indeed, the mother’s allegations will probably lead to a submission being made at a final hearing that she was shopping for evidence of abuse by repeatedly taking [X] to the hospital, for example, 1 May 2011, 19 June 2011, 13 November 2011 and to a doctor, for example, 1 April 2012. 

13. The next limb of the mother’s case about the risk to [X] is that because the father had another child to another Korean woman, a child [Z] born [in] 2009, and because the child is with her mother in Korea and because the mother says “[Z]’s case is being investigated by DoCS” that by some extraordinary combination of inferences that this raises concerns about [X].  Try as I can to make sense of this submission I cannot understand it.  Try as hard as I can to ask for or search for any evidence to suggest that there were any concerns about [Z] that might somehow inform the risk assessment process for [X] I could not discern any. 

14. Given that the respondent mother and those who advise her have had many months to prepare for this interim hearing I am sure that if there was any evidence to somehow substantiate this concern it would have been adduced.  There was no such evidence.  But one must understand that even if there was such evidence the consent orders of 17 February 2011 already provide adequate safeguards for [X].  The mother refers to an incident at [X]’s school on 13 February 2013.  The father apparently approached the school for information about [X]’s schooling.  Whether or not this was appropriate and whether or not it was pursuant to an invitation it is not an event that gives rise to any concern about [X]’s welfare. 

15. The mother’s response to this event provides an interesting insight into the way that the mother seems to view her entitlement and rights.  Her letter to the school principal of 19 February 2013 is an extraordinary missive that signals to the court the mother’s preoccupation with the rights she has as regards sole parental responsibility whilst ignoring the duties she has as a parent and under the court orders to, for example, share information with the father and grandmother.  One suspects more will be said about this at a final hearing.  The mother says at paragraph 67 of her affidavit that when she saw the father at school:

    His appearance reminded me of when he was using drugs.  I am concerned that the father has resumed drug usage.

16. Curiously, random drug testing is not a feature of the February 2011 orders which is inconsistent with the idea that the mother had any concerns about the father’s alleged drug taking at the time.  An appropriate response might have been to ask for drug tests and temporarily suspend contact.  When the mother was invited to propose to the court on what conditions she might be satisfied for [X] to return to Sydney it is curious indeed that drug testing was not one of those conditions advanced.  One wonders whether it is a real concern in her mind. 

17. In any event the mother’s observation of the father at the school is, in the court’s opinion a plainly inadequate basis for establishing risk of harm to [X].  Doing the best the court can it seems that the next basis for the mother’s concerns about [X]’s welfare is how she responded to her first weekend contact with her father.  Her evidence starts at paragraph 9 onwards of her affidavit.  It is no basis for asserting that there is any risk of harm to [X].  As the Independent Children’s Lawyer submitted this was a change in [X]’s life and routine and it was unsurprising that she might have some period of adjustment to it. 

18. It was a developmentally appropriate move to overnight weekend contact.  The mother thought it was appropriate when she entered into the consent orders in February 2011.  The court did as well.  Quite simply stated there is no evidence before the court at all to suggest that there are any concerns, any issues of concerns about [X] or indeed the mother’s care or well being than are not already accommodated in the existing consent orders.  The Act requires me to consider [X]’s views.  This is not a consideration. 

19. I need to consider the nature of [X]’s relationships. The consent orders of February 2011 strongly facilitate [X]’s relationships with her father, grandmother and step‑sister [Y].  On the mother’s proposals for all practical purposes these relationships would either end or be substantially degraded.  The mother makes out no case for needing to do so.  On the father, grandmother and Independent Children’s Lawyer’s proposal all these relationships would be maintained.  The only risk to [X] is if her mother chooses not to return to Sydney with [X].  I have discussed this above. I accept that removing [X] from Adelaide disrupts the relationships that she has formed there but these are new relationships. 

20. I am required to consider the extent to which each parent has taken or failed to take opportunities to make decisions, spend time or communicate with [X].  The mother has sole parental responsibility.  Her actions have deprived the father of opportunities to spend time or communicate with [X].  She is, however, critical of the father not taking up her offer of time at a supervised contact centre in Adelaide, an offer apparently made on 1 May this year.  Also there was an offer of Skype contact. 

21. It is possible that the father could have done more to spend time or communicate with [X] since February 2013.  Having regard to all the evidence, however, the court is somewhat sceptical about the mother’s bona fides in making this order and in any event doubts whether Skype would have been a suitable alternative in the circumstances of this case.  It is hard to accept the mother’s criticism of the father in circumstances where she appears to have acted unilaterally, arbitrarily and it would seem on the evidence capriciously. 

22. I need to consider obligations to maintain the child.  The father has been clearly lax in meeting his child support obligations and has only recently paid $5,000 out of arrears of over $6,000.  In circumstances where he discloses a shareholding of over $60,000 it is hard to understand why he could not pay arrears earlier.  His evidence is that he has been unemployed or in casual employment for some time. 

23. I am required to consider the likely effect of change. The mother’s unilateral actions has brought about massive change in [X]’s life, away from her home, her school, her friends, her grandmother, her father, her step-sister. As it turns out the evidence discloses no good reason for doing so. Should she be exposed to even more change by being ordered back to Sydney? The consideration in section 60CC looks at the likely effect of change, not just generally but in terms of relationships with significant people.

24. Yes, a return to Sydney is another significant physical change for [X] but it brings her back to relationships with her father, grandmother and step-sister.  This is positive change.  Yes, it removes her from where she has been for four months but four months is not much time to form meaningful relationships.  The biggest change for [X] is if the mother decides not to return with her.  This is the mother’s choice.  On the evidence it is as hard to accept the reason she advances for relocating as it is hard to accept her reasons for not returning. 

25. On the one hand she says that there is such a risk to [X] in Sydney that she had to be unilaterally and contrary to orders relocated to Adelaide.  On the other hand in her mind the risk is obviously not so great that she must herself return to Sydney with [X].  As I said to her counsel on all the evidence I cannot understand the mother’s willingness to let [X] return on her own and the consequences of this for [X].  It does not make sense.  It is the court’s assessment that it is more likely than not that the mother will return with [X] if [X] is ordered to be returned to Sydney but if she does not that is the mother’s choice.  She will expose her child to the trauma of a change of primary carer from the mother to the grandmother, a person who in the circumstances would be the next best alternative.  This change would be difficult for [X] but she would probably cope.  It is a necessary change for all the reasons articulated in these reasons for judgment. 

26. I am required to consider issues of practical difficulty and expense.  This is an interim determination.  If all the parties are in Sydney there are no issues of practical difficulty and expense.  If [X] remains in Adelaide the father, grandmother and Independent Children’s Lawyer’s case is that as a practical matter [X] would lose the relationship she has had with her father, grandmother and [Y] because of those practical issues associated with distance and cost. 

27. If [X] is ordered to return to Sydney and her mother chooses not to return there are considerable issues associated with the mother spending time with her but it is the court’s assessment that the mother will more likely than not return to Sydney with [X].  If not her continued relationship with [X] may be facilitated by regular Skype contact supplemented by fortnightly visits which will be offered her.  One must not lose sight of the fact that the mother created this situation contrary to court orders to which she herself consented and for reasons which the court finds are not reasonable. The situation that she has created in these circumstances cannot be allowed to dictate the ultimate decision about what is best for [X]. 

28. I am required to consider issues of parental capacity.  There is no evidence before the court of any concerns whatsoever in relation to the grandmother’s parental capacity.  The concerns about the father’s parenting capacity are reflected and satisfactorily dealt with by the February 2011 orders.  The mother’s actions as discussed in these reasons do raise issues about her capacity to meet [X]’s emotional needs. 

29. The mother has brought about what is nothing less than an abrupt and dramatic change in [X]’s life away from her home, a new school, her new school friends, her routine, her community, her relationships with the father, grandmother and step-mother.  It is hard to imagine that the events that she relies on to justify her unilateral relocation precipitated such a sudden move.  One suspects that fertile ground for cross-examination at the final hearing will be the mother’s plans to relocate and whether the move was as precipitous as the mother suggests in her evidence. 

30. The mother’s actions, in any event, reveal a real gap or uncertainty as regards her understanding of what a child of [X]’s age actually needs.  But the Court’s concerns in this regard are accentuated by the instructions the mother gave to her counsel, duly communicated to the Court during the hearing of the matter, that she would not return to Sydney, that [X] would not be returning to Sydney, that no alternative proposal for contact with [X] could be formulated.  All of these actions point to a real deficit in being able to prioritise [X]’s needs over those of the mother. The Court has grave fears in these circumstances that if [X] is left with the mother in Adelaide, the mother’s lack of understanding or appreciation of [X]’s needs for stability as well as important relationships with her father, grandmother and [Y], will result in a loss of those relationships. 

31. I am required to consider maturity, sex, lifestyle and background.  This is not a determinative consideration in an interim decision.  It may play a greater role at a final hearing. 

32. I am required to consider parental attitudes. I do not intend to repeat here the various concerns expressed about the mother’s actions that reflect a very poor attitude on her part about her responsibility as a parent.  The father has demonstrated a poor attitude by not consistently supporting [X] financially as he should have. 

33. Family violence:  the existing consent orders reflect the family violence issues in this case.  The evidence does not disclose any family violence issues since the February 2011 orders were made.  Existing protections suffice, based on all the evidence before the Court.

34. I am required to make the order least likely to lead to further proceedings. These are interim orders. The Court is most conscious of the fact that in ordering [X] to return to Sydney with or without her mother, it is her choice, there is the possibility that next year, or indeed, as it turns out, that later on this year, as a result of a final hearing, relocation might be permitted.  If that happens, of course, it will be the result of a proper evaluation and testing of all the evidence with a family report and following due process. 

35. This is in great contrast to the present determination that is based on hastily prepared, incomplete and conflicting evidence that is untested.  Again, it must be emphasised; the mother created this very unsatisfactory situation in which we are in.  The Full Court, in C & S and Morgan & Miles have explained why situations of recent creation should not be allowed to determine what will, in reality, be a final outcome.  The issues here are not freedom of movement or escaping family violence and abuse or risk thereof as the mother contends. But rather, creating the circumstances for an orderly, just and thorough consideration of what is in [X]’s best interests. 

1. Let me draw the various considerations together.  It should be apparent that the Court’s assessment of the considerations referred to above point towards an order for [X]’s return to Sydney with or without her mother.  It is legitimate to consider the impact on her mother of such an order.  The Court can only hope that the mother is reassured that both the Court and the Independent Children’s Lawyer have reviewed carefully the reasons the mother gives for being concerned about the welfare and safety of both herself and [X] and found that the risks are more than adequately managed via the existing orders. 

2. The mother might be reassured by a number of other matters.  Firstly, if the mother does not receive the $5,000 arrears of child support paid by the father the week before last before the end of this week, that is, before 28 June,  she will have leave to make an oral application, if necessary, for funds to facilitate her return back to Sydney before me on 72 hours notice.  $5,000 should be more than enough to return to Sydney, find accommodation, pay a bond and pay rental, on all the evidence before the Court. Moreover, if the mother believes that she needs more, again she can apply before me on short notice. 

3. Secondly, the mother raises the issue of the father reverting to drugs.  As sceptical as the Court is about the mother’s evidence in this regard, nonetheless the Court will empower the Independent Children’s Lawyer to request random urinalysis of the father at not more than once each month.  Thirdly, as the mother is clearly concerned about whether there is anything inappropriate as regards the father’s relationship with his child [Z], again the Court will order the Independent Children’s Lawyer to pursue investigations in this regards. 

4. Fourthly, the Court will do its best to hear this case on a final basis before Christmas.  And indeed, subject to the availability of the parties I intend to set this matter down for hearing on 2, 3 and 4 December this year.  Fifthly, the mother has expressed concern about her address being known to the father.  I will limit the disclosure of her address to my associate and to the Independent Children’s Lawyer.

5. Now, if, notwithstanding, all of these matters set out above, the mother still does not intend to accompany [X] to Sydney, then she must understand there are certain implications that will follow. Parental responsibility will need to be reallocated.  Given the mother’s distrust of the grandmother, for no good reason apparent on the evidence, a shared parental arrangement is unlikely to work, especially given the distance.  It follows that, on an interim basis, sole parental responsibility will be allocated to the grandmother. 

6. In terms of the mother’s proposal to spend time and communicate with [X], the Court will await her proposal and in this regard the matter can be relisted before me on 72 hours notice. 

7. I intend to give the mother a reasonable time to consider her situation and to make the necessary arrangements, either to return to Sydney or to return [X] to Sydney.  Given the mother’s history of ignoring court orders she will be restrained from moving from her current address except in accordance with these orders.  It is telling, for example, that at no stage until pressed by the Court did she disclose when she relocated.  In her affidavit she gave as her address her solicitors in [M], thus creating the impression, for some time, that she was in [M], an impression that was not readily corrected by those representing her.  Even now she has not been pressed to give her home address.  That needs to change.  She must advise my associate and the independent children’s lawyer within 24 hours of making these orders.  I intend to have these orders taken out for the benefit of the parties.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  21 August 2013

Annexure A

Orders sought by the Applicant Father:

1. The child’s Mother forthwith be ordered to relocate to Sydney

2. The Father’s time lost by the Mother’s relocation to Adelaide be made up.

3. The Mother pay the Applicant’s costs.

4. The Orders of 17 February 2011 continue to apply without amendment.

5. The current Orders be varied in that the requirement of supervision of the Father’s time with the child namely [X] born [in] 2007 be dispensed with during the hours of 9:30am to 6:00pm on each occasion the Father spends time with the child.

6. At all times when the Father is due to exercise spending time with [X] the paternal Grandmother shall collect the child from her Mother at the commencement of contact and the paternal Grandmother shall return the child to her Mother at the conclusion of the child’s time with her Father.

Annexure B

Orders sought by the Mother (First Respondent):

1. That orders 3 to 18 of the final orders made 17 February 2011 are dismissed.

2. That the paternal grandmother Mrs Sedgwick spend time with the child conditional upon the receipt of an assessment of clinical psychologist Ms A concluding that it is appropriate that the paternal grandmother spend time with the child.

3. Time spent is to occur as follows:

   (a)For 12 months from final orders at a contact centre as chosen by the mother for 6 times per year for 4 hours at a time agreed. The costs of contact are to be met by the paternal grandmother (this time is to not be in the presence of the father)

   (b)Thereafter for 6 times per year for a period agreed and duration agreed.

4. The father is to spend time conditional upon the father undergoing anger management, psychological and psychiatric treatment. The treating professionals must provide a report that it is appropriate for the father to spend time with the child. The father must also provide urinalysis results as randomly requested for by the mother not exceeding 12 times per year.

5. Upon receipt of documentation showing clear urinalysis and recommendations from psychologist and psychiatrist that time is to occur time spent is to occur as follows:

   (a)At a contact centre as chosen by the mother for 6 times per year for 4 hours at a time agreed. The costs of contact are to be met by the father.

6. The father forthwith sign all documents and do all things to allow the child to have an Australian Passport issued. In the event that the father fails to or neglects to sign any document or do anything pursuant to this order, then a registrar of this Court is authorised to sign such a document or do such a thing pursuant to s.106A of the Family Law Act, an affidavit from the mother shall be sufficient evidence of the father’s non-compliance with this order and shall allow a Registrar to act under this order.

7. The mother is at liberty to travel internationally with the child.

Annexure C

Orders Sought by the Paternal Grandmother (Second Respondent)

1. That until she commences school, [X] spend time with the paternal grandmother Mrs Sedgwick each alternate Monday between the hours of 10am and 5pm.

2. That for the first six (6) months after the making of final orders in this matter and for the purposes of Order 1 above, changeover at the commencement and conclusion occur at the Contact Centre closest to the current residential addresses of both the mother and the paternal grandmother, and that each of them be restrained from changing their respective residential addresses.

3. That thereafter and for the purposes of the time referred to in Order 1 above, the Mother deliver the child to the paternal grandmother at the grandmother’s residential address at the commencement of the time period and the grandmother or her nominee redeliver the child to the mother’s residential address at the conclusion.

4. That for the purposes of Order 1 above, the father shall not be present during the grandmother’s time with [X].

5. That once [X] starts school, she spend each alternate weekend with the paternal grandmother, her partner Ms M, the father Mr Sedgwick and the child [Y], between the hours of 10am Saturday and 5pm on the Sunday immediately following, with the overnight component of the time period to be exercised at the grandmother’s home for the first six (6) months and always under the supervision of either herself and/or her partner Ms M.

6. That the mother be restrained from removing the child from the Sydney Metropolitan Area or more particularly any further than 30 kilometres from the Sydney Central Business District, except with the consent of the grandmother or by Order of this Court or a Court exercising jurisdiction under the Family Law Act.