Stennet and Stennet

[2018] FCCA 1831

FEDERAL CIRCUIT COURT OF AUSTRALIA

STENNET & STENNET [2018] FCCA 1831

Catchwords:
FAMILY LAW – Interim parenting – where Mother unilaterally relocates the children from Tasmania to the Region 2 region of New South Wales – where Mother seeks to re-activate risk of harm considerations that were raised in the lead up to final Consent Orders made 5 December 2016 – Rice & Asplund issues.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Morgan & Miles [2007] FamCA 1230

MRR v GR [2010] HCA 4

Rice & Asplund (1979) FLC 90-725

Applicant: MS STENNET

Respondent: MR STENNET

File Number: LNC 650 of 2015

Judgment of: Judge Altobelli

Hearing date: 20 June 2018

Date of Last Submission: 20 June 2018

Delivered at: Wollongong

Delivered on: 10 July 2018

REPRESENTATION

Counsel for the Applicant: Mr Hill

Solicitors for the Applicant: Fay Rose Legal

Solicitors for the Respondent: Peter Jurd Lawyer

Solicitors for the Independent Children's Lawyer: Acorn Lawyers

ORDERS

1. The matter is transferred to the Federal Circuit Court of Australia at Launceston to be listed on a date no later than Friday, 20 July 2018.

2. The Mother is to cause the Children to be returned to the Town A area of Tasmania by no later than Friday, 20 July 2018.

NOTATION

A.This Court recommends that consideration be given to:

1.reappointing the Independent Children’s Lawyer who was formerly appointed; and

2.expediting the final hearing of this matter.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

LNC 650 of 2015

MS STENNET

Applicant

And

MR STENNET

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about two Children, [X], born 2008, nearly 10, and his brother [Y], born 2013, nearly 5.  The Court has to decide where the Children should live and whether the current proceedings in relation to them should be allowed to be continued in New South Wales.

Background

1. The Father is 45 and currently lives in Tasmania.  The Mother is 42 and currently lives in the Region 2 region of New South Wales.  They commenced cohabitation in 2004, married in 2009, and separated in June 2015. 

2. Between 2015 and 2017 there were proceedings between the parents in the Federal Circuit Court of Australia at Launceston.  What took place during these proceedings is relevant and important to the current application.  The previous proceedings will be discussed in more detail, later in these reasons.  Suffice to say that that on 5 December 2016 final parenting Orders were made.  The same document dealt with financial matters, but as procedural fairness had not been extended in relation to superannuation, that part of the order was adjourned to a later date.  Having had the benefit of reviewing the Court’s file, there can be no doubt that on 5 December 2016 final parenting Orders were made.  The fact that the parenting Orders were still in the document that was signed by a Judge on 16 January 2017 does not, in this Court’s view, detract from the conclusion that parenting Orders were made on 5 December 2016.  Those Orders provided for equal shared parental responsibility, for the Children to live with their mother, and to spend time with their father in accordance with a staged arrangement.  There were a number of conditions that needed to be satisfied, but once satisfied the Children would be spending each alternate weekend with the Father, as well as each Wednesday.  As will be seen below, there were subsequent contravention proceedings as well.

3. The implementation of the Orders was not without its problems.  There are, unsurprisingly, slightly different contentions made by both parents as to what time and communication the Children had with the Father in 2017.  Doing the best the Court can, the strong impression formed is that the Children did spend time with the Father in 2017, but it was not necessarily consistent with the strict terms of the Consent Orders.  If the Mother’s case is accepted as the base line, then throughout 2017 the Father spent about 10 occasions with the Children, but usually more with [Y] than [X].  Indeed, the evidence suggested [X]’s relationship with the Father became problematic in this period.  The Mother says that, in effect, this was the result of what the Father had done in the past, and failed to do.  The Father contends that, in effect, the Mother was discouraging his relationship with [X].

4. In any event, in late December 2017 the Mother and the Children travelled to the Region 2 region of New South Wales to support the Mother’s sister, who had unfortunately received a diagnosis of cancer.  The Mother, who is a (occupation omitted), assisted in her sister’s care.  Doing the best the Court can, the strong impression formed is that the Father initially consented to the Mother and the Children travelling to New South Wales for this purpose.  From his perspective though, it is more likely than not that he regarded this as a temporary arrangement meant to provide short term support to the maternal aunt.  The Mother enrolled the Children in a school in the Region 2.  A reasonable inference is that, certainly from this point if not before, whatever consent the Father had given to the Mother and Children’s travel to New South Wales was withdrawn, or had ended.  The Mother had decided that she was going to stay in New South Wales.  At this point, from the Father’s perspective, she had unilaterally relocated the Children.

5. On 6 February 2018 the Mother commenced these proceedings in the Federal Circuit Court of Australia at Parramatta. On 19 March 2018, Judge Myers transferred the matter to the Wollongong registry, and ordered a Child Inclusive Conference. This Conference was held on 7 May 2018, and the contents of the Memorandum produced as a result of the Conference will be discussed below. On 10 May 2018, the Court, of its own motion and in Chambers following receipt of the Child Inclusive Conference Memorandum, appointed an Independent Children’s Lawyer for the Children and made Orders under s.69ZW of the Family Law Act 1975 (hereafter referred to as ‘the Act’) addressed to the Tasmanian Department of Health and Human Services, and the Tasmania Police Service.

6. By the time the matter came back before the Court on 30 May 2018, the Father had still not filed any material.  The Child Inclusive Conference Memorandum was released to the legal representatives only.  The Father was directed to file his evidence. The matter was listed for Interim Hearing on 20 June 2018.

7. On 20 June 2018, Mr Hill of Counsel appeared for the Mother, Mr Jurd appeared as Solicitor for the Respondent, and Mr Williamson appeared as Independent Children’s Lawyer.  These Reasons for Judgment explain the Orders made consequent to that Interim Hearing.

The competing proposals

1. The Mother sought Orders suspending some of the Orders previously made on 16 January 2017.  She proposed that she have sole parental responsibility, that she be permitted to reside in New South Wales with the Children, that [X] communicate with the Father in accordance with his wishes, and that [Y] communicate with the Father by way of Facetime video calls.  As will be apparent from the above, the Mother’s proposal provided for the Children to have no in-person contact with their father, other than by electronic means.

2. The Father’s proposal was that the Mother’s application be dismissed, and that consistent with the Orders already in place, the Children return to live in Tasmania.  He did propose, however, that the Children be allowed to remain in New South Wales to attend the school term here before returning to Tasmania.  The Father’s case was, simply stated, that the Mother had unilaterally relocated the Children, and that there were no circumstances that would warrant any reconsideration of the Consent Orders that the parents had entered into in December 2016.

3. The Independent Children’s Lawyer’s proposal was that, in the difficult circumstances of this case, the Mother’s proposal be supported.  It is clear from the very helpful case outline provided by Mr Williamson as Independent Children’s Lawyer, that his position was not without doubt or reservation.  The Independent Children’s Lawyer clearly acknowledged that there was a Rice & Asplund issue in relation to whether there had been changed circumstances for the Children.  He quite frankly submitted, for example, that the Mother’s relocation of the Children in order to support her sister through her cancer crises “appears to have been a matter of convenience for the Mother”.  Nonetheless, the Independent Children’s Lawyer was conscious of the contents of the Child Inclusive Conference Memorandum, and that the existing Orders for the Children to spend time with their Father seemed very problematic in their implementation.

The evidence before the Court

1. The Mother relied on the following documents:

   a)Initiating Application, filed 6 February 2018;

   b)Notice of Risk, filed 6 February 2018;

   c)Affidavit of Ms Stennet, sworn 2 February 2018 and filed 6 February 2018;

   d)Affidavit of Ms Stennet, sworn and filed 18 June 2018; and

   e)Affidavit of Ms J, sworn 17 June 2018 filed 18 June 2018.

2. The Father relied on the following documents:

   a)Response, filed 12 June 2018;

   b)Notice of Risk, filed 12 June 2018;

   c)Financial Statement, dated 20 June 2018 (unfiled);

   d)Affidavit of Mr Stennet, sworn and filed 30 May 2018; and

   e)Affidavit of Mr Stennet, sworn 20 June 2018.

3. The following documents were tendered during the Interim Hearing:

   a)Documents produced pursuant to subpoena to Region 1 Hospital;

   b)Documents produced pursuant to subpoena to Dr R;

   c)Documents produced pursuant to subpoena to School;

   d)Documents produced pursuant to subpoena to Tasmania Fire Service; 

   e)Documents produced by Tasmania Police pursuant to s.69ZW of the Act;

   f)Child Inclusive Conference Memorandum dated 7 May 2018.

The Child Inclusive Conference Memorandum

1. For some unexplained, and thus equally unacceptable reason, the Father did not attend the Child Inclusive Conference.  The Mother did attend, with both [X] and [Y].  The Family Consultant records the Mother’s allegation of a history of ongoing and serious coercive controlling family violence, supported by a documented history with Tasmania Police, and numerous breaches of AVO.  The Family Consultant further noted the Mother’s allegations about the Father’s mental health, previous psychiatric admissions and suicide attempts.  Also noted were the Mother’s allegations about the Father’s alcohol and drug abuse.  The Mother was of the view that [X] was fearful of his Father and realistically estranged from him.  She surmised that this was because of exposure to family violence and having to intervene.  The Mother herself expressed fear of the Father.

2. The Family Consultant recorded [X]’s quite strong wish to remain living with his mother in New South Wales, on the basis that this represented a new start for [X].  The Family Consultant’s view was that [X] had probably been exposed to family violence and its effects.  The Family Consultant concluded in relation to [X]’s view as follows:

   [X] has voiced a clear view.  Whilst he is not at an age where he is able to take a long term view of his situation, his account was troubling and lends weight to Ms Stennet’s reports of risk.

The applicable law

1. The applicable law is, of course, Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     When making a parenting order in relation to a child, 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 for the child.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by 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.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, 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.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     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.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (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.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

The case law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    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.

4. The Full Court, in Morgan & Miles [2007] FamCA 1230, made a number of comments relevant to the circumstances of this case in paragraphs 82 to 88 (emphasis added):

   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.

The litigation in Tasmania

1. An examination of this Court’s file of the proceedings between the parents through the Launceston registry provides the following very important background information.

2. The Mother commenced proceedings on 21 December 2015 for alteration of property interests.  Her Affidavit in support sworn 17 December 2015 does contain evidence pertaining to the Children.  At paragraphs 13 and 14, for example, she refers to the safety concerns that she has for both the Children and herself as a result of the domestic violence that, she asserted, the Father perpetrated.  She annexes two statutory declarations that she made for Tasmania Police.  Those statutory declarations refer to the Father’s aggression, violence, drug and alcohol abuse and MS diagnosis.  It is somewhat curious, the Court observes, that given the seriousness of the allegations that she makes about the Father insofar as they relate to the Children and herself, that she did not also seek Orders in relation to the Children.

3. On 8 April 2016 the Father, through his Solicitor, caused a Response to be filed dealing with both financial matters and seeking parenting Orders.  He proposed equal shared parental responsibility, that the Children live with their mother, and spend time with him each alternate weekend from Thursday to Tuesday and so forth.  The Court notes with interest, given subsequent events, that he sought an Order that the Mother be restrained from removing the residence of the Children from Tasmania without his prior written consent, or Court Order.  His Affidavit in support sworn 7 April 2016, contains allegations of the Mother’s emotional, verbal and physical violence directed towards the Father, in the presence of the Children.

4. The matter came before the Court on 15 April 2016.  Amongst other orders, Judge Roberts appointed an Independent Children’s Lawyer for the Children.  Thereafter subpoena were issued to the Town B Community Health Centre and Tasmania Police.

5. The parents attended a Child Dispute Conference on 28 April 2016.  Under the heading “Risk Factors” the Family Consultant notes the Mother’s allegations that the Father has a severe disability (MS) and ongoing alcohol and drug dependency, mental health issues – depression, is cognitively impaired and lacks insight, and is psychologically abusive to her and the Children.  The Family Consultant also notes the Father’s allegations that the Mother has been emotionally, verbally and physically abusive to him, and was also a regular user of alcohol and cannabis.

6. On 3 May 2016, the Mother caused to be filed a Reply that dealt with parenting Orders.  She too proposed equal shared parental responsibility and that the Children live with her.  On an interim basis, she proposed that the Children spend time with the Father at a supervised contact centre.  Of interest to the Court, again having regard to subsequent events, is that the Mother proposed an Order, both on an interim and final basis, that she be restrained from removing the residence of the Children from the State of Tasmania without the Father’s prior written consent, or Court order.

7. In the Mother’s Affidavit in support of her Reply, sworn 2 May 2016, she sets out extensive evidence about the Father’s verbal and physical violence, drug and alcohol abuse, his mental health issues including two psychiatric admissions in 2015, and the Father’s inability to cope with his MS symptoms and debilitating tiredness.

8. When the matter came before Judge Maguire in Burnie on 5 December 2016, the parents entered into final Consent Orders.  It is important to note that both parents were legally represented, and the Children had an Independent Children’s Lawyer.  The detailed allegations made by the Mother were plainly set out in her Affidavit.  A subpoena had been issued.  The parents nonetheless agreed that there should be equal shared parental responsibility and that the Children live with their mother.  The order for the Children to spend time and communicate with the Father was a staged one, which was dependent upon certain things happening (the demolition of a property they owned at Property A).  Subject to completion of the stages, and otherwise in accordance with the Consent Orders, the Father’s time was to progress to each alternate weekend from Friday to Sunday, as well as additional time on Wednesdays.

9. On 7 March 2017, the Father caused to be filed a Contravention Application.  In that application, and in his Affidavit in support sworn 2 March 2017, he deposes to what he alleged to be the Mother’s extensive non-compliance with the Consent Orders previously made.  What is of interest, for present purposes, about this material is that it expressly refers to an incident prior to the Consent Orders, in which the Father fell asleep while oil was on the stove.  This eventually led to the house burning down.  It would seem that this explains the reference in the Consent Orders to the demolition of the Property A property.  Annexed to the Father’s Affidavit is a letter from the Mother’s Solicitor dated 15 February 2017.  This letter acknowledges the house fire on 15 September 2016.  It makes allegations about the Father’s mental instability arising from drug and alcohol abuse and specifically refers to at least one previous suicide attempt.

10. When the matter came before Judge Maguire in Burnie on 4 April 2017 he adjourned the Contravention Application for hearing to 5 June 2017.  His Honour’s Orders, however, also refers to a subpoena to Tasmania Police and Town B Hospital, and that the same be released for inspection.

11. When the matter came before the Court on 5 June 2017, it was adjourned to 10 July 2017.  On 10 July 2017 the Contravention Application filed 7 March 2017 was dismissed with no order as to costs.

12. The above is the background to the present proceedings.

The cases advanced

1. Mr Hill, Counsel for the Mother, very quickly appreciated that he was confronted not just with an application, in effect for summary dismissal based on Rice & Asplund, but also that, in any event, it was asserted that his client had unilaterally relocated from Tasmania to New South Wales with the Children and that the Court was being asked to order their return.  Indeed, the Court had expressed concerns to Mr Hill that the Orders proposed were so different to that which the parents had themselves agreed to 18 months earlier, and the Court was concerned about further litigation relating to the Children.

2. Mr Hill thus, quite properly in this Court’s view, focused on events that occurred after the Consent Orders were made in December 2016.  Indeed, an interesting aspect of the Mother’s case is that she relied, in this regard, on events that occurred after 5 December 2016, of which she was not aware until the preparation for this Interim Hearing.

3. In the chronology in the Mother’s case outline document filed 19 June 2018, there is reference to events in the period after the Consent Orders were made which are, for the most part, supported by the documents that were subsequently tendered in evidence.  Thus, for example, on 17 December 2016 the Father attended the Mother’s home in breach of an existing family violence order (indeed, one made 20 April 2016).  The Father attended the home on Christmas Eve 2016 again, apparently, in breach of the family violence orders, leaving presents for the Children.  Neither the Mother nor the Children were at home.  On 11 January 2017 the Father sent to the Mother four emails apparently in breach of the family violence order.  On 17 February 2017, Tasmania Police caused CCTV cameras to be installed at the Mother’s home.  On 22 March 2017, the family violence order made on 20 April 2016 was extended for a further seven months, apparently due to the Father’s continued breaches of the said order.  As referred to earlier in these reasons, the Father commenced contravention proceedings which were ultimately dismissed in July 2017, but it seems that this may have precipitated attempts by the parents to improve [X]’s relationship with his father.  Thus counselling apparently took place with [X] and the Father in August 2017, but without success.  It is common ground that on 20 December 2017 the Mother and Children arrived in the Region 2, NSW.

4. The Father’s case, briefly stated, is that he was trying to spend time with his children in accordance with the Orders.  Indeed, his Contravention Application filed 7 March 2017 alleges that the first contravention occurred on 14 December 2016, a mere nine days after the Orders were made by Judge Maguire by consent.  None of this, of course, justifies any breach of a family violence order but, the Court wonders whether the Consent Orders made 5 December 2016 should not have given more explicit consideration to the terms of a family violence order that was already in place at the time.

5. The Mother’s case, again briefly stated, is that whilst the Children would benefit from having a meaningful relationship with their father, such are the risks of the Father’s family violence, his substance abuse, and his mental health concern that there was a risk to them.  Until that risk could be alleviated, the Father should not be spending time with the Children.  Moreover, she alleges that the Father has not spent time with the Children in accordance with the Orders that were in place, and that [X] has, in any event, become realistically estranged from his Father. 

6. What is apparent to the Court as a result of examining the Court’s file in this matter, whilst it was being dealt with in Tasmania, is that the Mother had extensive knowledge about the Father’s alleged substance abuse, mental health and family violence issues.  There can be no doubt that she was aware of all of these issues at the time that she entered into the Consent Orders.  Even putting aside risk of harm issues, the Mother’s case struggled to articulate a coherent plan for the Children to be able to maintain some relationship with their father and, even if the Mother were correct in asserting that [X] was realistically estranged from the Father (put in contention, of course, by the Father) what steps might be taken to address the relationship issues between [X] and his father?  Why would [Y] miss out, in any event, just because [X] might have problems with his Father? How could any of these problems be satisfactorily addressed when the Mother had unilaterally relocated to New South Wales with the Children?  There are many unanswered issues that are raised by the Mother’s proposal to the Court.

7. The submissions made on behalf of the Mother by Mr Hill, and the voluminous records tendered in evidence, were intended to satisfy the Court that there had been such changed circumstances in the Children’s lives that the Mother’s application should not be dismissed.  Moreover, and importantly, that it was nonetheless in the best interests of the Children that they not only remain living with their Mother, but in New South Wales where she had decided to stay.

8. Exhibit A1 tendered in the Mother’s case consisted of the Father’s hospital records.  It is interesting, indeed important, to note that an almost identical subpoena had been issued on behalf of the Mother on 20 March 2017, presumably in response to the Contravention Application the Father had filed on 7 March 2017.  The Mother would have had information up until the date of the subpoena, or reasonably proximate thereto, when the documents were produced.  This becomes significant, given the Mother’s reliance on an event that allegedly occurred in December 2016.

9. In any event, Counsel took the Court to various documents.  For example, tab 2 was a record apparently dated 18 September 2017, where the Father presented with a number of symptoms which were diagnosed as Multiple Sclerosis.  This was, of course, a matter well known to the Mother.  Counsel submitted that this evidenced deterioration in the Father’s condition.  There is no basis, with respect, for making that submission.  There is also reference in the tab 2 document to the Father’s use of cannabis, admission for suicidal thoughts, and alcohol use.  What is apparent from the Court’s earlier file is that all of these matters were well known to the Mother.

10. Counsel directed the Court’s attention to a number of documents in this exhibit which referred to a psychiatric crisis, or suicide attempt, on 25 December 2016.  The hospital records indicate that the Father was sitting on the roof of a house with a noose stating that he intended to jump.  When police attended, he spoke with them, was smoking cigarettes, and drinking red wine.  The record indicates that there was nil obvious distress, that wire in a noose shape was sitting on the ground near the building, and tablets were sitting next to the Father.  The record refers to police reporting that the patient had initially been holding the wire-shaped noose stating he intended to jump and kill himself, however had thrown the noose away at their request.  Police also reported suspicion that the patient had consumed at least eight drinks of alcohol, as well as marijuana.  Discussion with patient and police revealed significant current stressors including:  house burned down, divorced from wife with restraining order and no access to Children, death of friend Mr J, and living with Multiple Sclerosis.  On assessment he was found to be poorly kept, slow slurred speech, dilated pupils, denying suicidal intent or drug use other than prescribed.  The patient was found to be generally depressed and mildly agitated.  He came down willingly from the roof, said he was willing to come to hospital for assessment, changed his mind, was placed in protective custody without restraints and taken to hospital.

1. The record at tab 6 contains the observation under the heading Doctor Notes:

   I note from the DMR that he had an almost identical presentation on Christmas Day 2015, admitted overnight to Medical Clinic, self-discharged next day.

2. If this incident is viewed without reference to the broader context of this case it would be disturbing indeed.  However, firstly, there is reason to believe that the Mother was aware of the incident before the present application.  Her own Solicitor had issued a subpoena to the hospital, presumably on her instructions, on 20 March 2017.  There seems little doubt that the schedule of documents sought would include the very records that were tendered to the Court.  This Court believes that it is reasonable for it to assume that if a Solicitor issues a subpoena, that the documents in question would be inspected.  In any event, the Mother’s Affidavits filed in support of her application contain no reference to the event of 25 December 2016, and her case on the day was presented on the basis that this was new information that was relevant, not just to whether there had been changed circumstances, but the best interests of the Children generally.

3. At a final hearing, of course, if there is one, the event of 25 December 2016 could be seen in the broader context of what was happening at the time.  Thus, even now it is apparent to the Court that the Mother was well aware of the Father’s mental health, drug and alcohol issues, and family violence at the time that she entered into Consent Orders.  With the benefit of legal advice, she clearly came to the view that those Orders were in the best interests of her Children.  An Independent Children’s Lawyer came to the same view.  The Court was obviously of the same view, because it made the Orders in question.  The doctor in the hospital records observes the similarity between the incident on 25 December 2016, and one that occurred on 25 December 2015, of which the Mother would have been well aware.

4. It is hard to see, therefore, how this event, when viewed not in isolation but in context, constitutes a changed circumstance.  Moreover, it is hard to see how the risk for these Children, as a result of the incident on 25 December 2016 is any greater than it was at the time that the Orders were made on 5 December 2016.

5. Counsel persisted, and took the Court to later hospital records in 2017 and 2018, which suggest an exacerbation of the Father’s medical conditions.  With respect, the documents do no such thing.

6. The Court’s attention was directed to documents produced by Dr R, the Father’s Consultant Psychiatrist.  With respect, the documents in question tell the Court no more than what the Mother had already alleged about the Father in terms of his mental health issues.  The documents produced by Town A School in relation to the Children does not assist the Mother in her case.  In particular, the document at tab 13 appears to be an email sent to the school by [X]’s Independent Children’s Lawyer in the first proceeding, which is marked up to show the school’s response.  It is undated, but clearly pre-dates the making of the Orders on 5 December 2016.  On reading this document, the impression formed is that [X] was doing well at school, and was engaged for a period with a Department of Education social worker.  The Mother was the main point of interaction with the school, though the Father used email to communicate.  There were no events or incidents between the parents at the school.  Both parents have had meetings with [X]’s teachers, albeit separate.  [X] always presented to school clean, with lunch and sports equipment etc.  There is only one cryptic reference that Mr Hill, somehow, sought to rely on.  The Independent Children’s Lawyer in that document had asked:

   Are there any other matters affecting [X] or information that you consider the court should be aware of?

   The response is:

   Town A is a very small and tight community and I am aware that some of [X]’s classmates and their families are friends with [X]’s parents.  Class teachers have encouraged children not to discuss home issues at school, as Town A is a neutral and safe place for children.

7. The Court accepts that the parents and the Children lived in a small community.  The relevance of this to the matters before the Court is unclear.

8. In the Mother’s case, documents produced by Tasmania Fire Service were tendered.  The purpose is unclear.  The fire at the Property A property took place on 2016, well before the making of the Consent Orders.  Perhaps the Mother was unaware of the details of the incident at the time she signed the Consent Orders?  She was certainly well aware of the fire.  The record in question records that the Father had been consuming alcohol and placed a pot of oil on the stove to cook dim sims.  He left the kitchen and fell asleep in the lounge room.  He awoke to the sound generated by the fire.  He went to the kitchen and was confronted with smoke and flames from around the stove.  He could not extinguish the fire and left the property to notify emergency services.  There is nothing in this event, per se, that creates a new risk profile for the Father, or which constitutes changed circumstances.

9. Exhibit A5, relied on by the Mother, consisted of documents produced under s.69ZW by Tasmania Police. The Court file records, however, that the Mother’s solicitor had caused a subpoena to be issued to Tasmania Police on 22 April 2016 and 19 March 2017. From this Court’s perspective, therefore, she is deemed to know the contents of the documents produced on subpoena as at the date of the same. The records largely inform the Court of what it already knows from the Mother’s evidence and that is that there were family violence offences that occurred both before and after the making of the Orders. In each case, it would seem from the records, associated with the Father seeking to spend time with his Children. Once again, the Court emphasises that this does not justify the Father’s actions, but puts them in context. The vast majority of the records in question pre-date the making of the order on 5 December 2016 and almost invariably involve the Mother personally. It is inconceivable that the Mother was not aware of the issues in question.

10. Insofar as the Mother’s case was based on changed circumstance, the evidence she sought to adduce in support of that does not assist her case.  The strong impression formed from the material filed in the Mother’s case, and tendered in her case, in fact confirmed in the light of inspection of the Court’s earlier file, that the Mother was well aware of the Father’s mental health, drug and alcohol issues, and family violence.  Nonetheless, whilst duly represented by a lawyer she entered into Consent Orders which were supported by an Independent Children’s Lawyer and by the Court.  She has brought about a very drastic change in the Children’s circumstances, moving them from their home in Tasmania to New South Wales.  Her case for change of circumstances was, with great respect to her and her legal advisors, flimsy. 

11. The focus then turns on what is in the best interests of the Children:  should they be allowed to remain in New South Wales on the basis of the Mother’s proposal, or should they be ordered back to Tasmania on the basis of the existing Orders.

12. It must be borne in mind that these are interim proceedings.  The Court does not have the benefit of further expert evidence, nor is it possible to test the evidence that has been adduced.  If the Court, in effect, dismisses the proceedings on the basis of Rice & Asplund it must, logically, make the consequential order for the Children to be returned to Tasmania, otherwise the Consent Orders that are in place would be rendered nugatory. 

13. To dismiss the proceedings in the absence of more fulsome evidence, and an opportunity to test the same, is highly problematic.  Whilst on the face of it, none of the material before the Court would suggest a change of circumstances, perhaps at a final hearing, and with further evidence, the Court might come to the view that it was nonetheless in the Children’s best interests that they be allowed to live in New South Wales, but that is not a conclusion that the Court can reach at an interim hearing, on the basis of the evidence before it.  Given that so little, if anything, has changed in the Children’s circumstances other than the change that the Mother herself unilaterally brought about, how can it be in the Children’s best interests that they are deprived of the opportunity to have any relationship with their father?  That is the practical implication of not ordering the Children back to Tasmania.  The Court accepts the Father’s evidence that he could not afford to travel to New South Wales to spend time with the Children. 

14. The Mother’s proposal is highly problematic, relying on matters of which she was well aware at the time of the December 2016 Orders, she imposed a significant obligation and pre-conditions on the Father before he might spend undetermined time with his Children.  The Mother contends that [X] is estranged from his Father, but there is no evidence about this other than her own, and the conclusion she draws is a lay one.  Given that [X] has not seen his Father since December 2017, it is hard to understand how he could be any more traumatised since leaving Tasmania, or how his estrangement from his Father could be any worse since leaving Tasmania.  These are all matters in respect of which there must be expert evidence.  Expert evidence, of course, takes time.

15. These Children have been taken away from the community, friends, school, and Father than they have known all of their lives.  The flimsy pretence with which the Mother justifies keeping the Children here suggests an element of opportunism on her part.

16. Even if there are relationship issues between the Father and the Children, and certainly there seems much less concern in relation to [Y] in this regard, what prospect is there of addressing this when the Children are in New South Wales and the Father in Tasmania?

17. When all of the evidence is assessed, and all of the submissions considered, there are in fact no best options for these Children.  If they stay in New South Wales, they will lose what relationship they have with their father.  This will not be because of anything that has happened since the Consent Orders of December 2016, but rather because of the Mother’s unilateral actions.  If the Children are ordered to be returned to Tasmania, the Court has little doubt that the Mother will return with them.  They will return to familiar schools and a community, and this will be protective for them whilst the longer term issue of where they live and what time they should spend with their Father is explored further and in a more meticulous fashion.  The previous Independent Children’s Lawyer can be re-appointed.  The matter can proceed in the usual fashion.  This, the Court considers, to be the least of the worst options for the Children. 

18. This means, however, that whilst the Court will order the Children to be returned to Tasmania, it will not make the order proposed by the Father dismissing the proceedings.  The matter will need to be dealt with in a proper fashion, but in a venue that gives the Children the best opportunity to resume their relationship with their father.

The section 60CC considerations

1. Even the Mother acknowledges that there is a benefit to the Children of having a meaningful relationship with both of their parents.  But, the Court is satisfied, that is impossible on the Mother’s proposal to the Court.  If these Children are not returned to Tasmania, they will not have any relationship with their father, particularly given the Mother’s proposal.

2. The Mother, in her case, asserts all manner of risks from the Father, to the Children.  In reality, the risk profile for these Children is no greater for [Y] and [X] than it was on 5 December 2016, when both their mother, and their lawyer, entered into Orders that they considered to be in the best interests of the Children.

3. The Court accepts that in the Child Inclusive Conference Memorandum, there is a record of [X] expressing a strong wish to remain living with his mother in New South Wales.  The Family Consultant noted that [X] has voiced a clear view.  The Family Consultant then expressed an opinion:

   While he is not at an age where he is able to take a long term view of his situation, his account was troubling and lends weight to Ms Stennet’s reports of risk.

   In the circumstances, however, this Court places minimal weight on the Family Consultant’s opinion.  One suspects that her opinion was based on both what the Mother told her, but failed to tell her, namely that all of the risk matters she raised were well known to her when the Consent Orders were made.  The Court acknowledges the importance of [X]’s views, but in the rather complex circumstances of this case, places minimal weight on that view.

4. It is clear that the Children’s strongest relationship is with their mother.  That will not change, whether they are in Tasmania or New South Wales.  The nature of the Children’s relationship with their father is problematic, particularly for [X].  However, if the Children are not returned to Tasmania, there is no prospect whatsoever of seeking to address these relationship issues.  Given the self-evident importance of their father in their lives, an importance recognised by the Mother herself in Consent Orders, that has to take priority, at least for the time being.

5. It is implicit, if not explicit, in the Father’s case that the Mother has excluded him from the opportunity to participate in making decisions about the Children, spending time with the Children, and communicating with them.  The Father has an arguable case in this regard.  His Contravention Application, which detailed alleged breaches of the order almost immediately after they were made was not, it should be noted, the subject of adjudication.  It was dismissed, and the Father’s evidence seems to suggest that he consented to this course of action.  Indeed, the inference from his evidence is that he sought to focus on improving his relationship with the Children.  The Mother’s case, however, that the Father himself decided not to involve himself in the Children’s lives is one that must be explored, but that cannot happen on an interim basis.

6. The likely effect of change in the Children’s circumstances is a consideration that weighs heavily on the Court’s mind.  The Mother has brought about a drastic change in their circumstances.  The order that the Father proposes would bring about yet another significant change.  The impact on the Children is mitigated, however, by returning to a familiar environment.  As mentioned earlier in these reasons, to not return the Children to Tasmania means the loss, probably on a permanent basis, of a relationship with their father.  It is not an ideal outcome but, the Court has decided, is the least of the worst alternatives for them.

7. The Court accepts the Father’s evidence that he would not be able to afford to spend time with the Children in New South Wales, even if the Mother had made an actual proposal in that regard, which she has not.  The pre-conditions she imposes, the family violence education, CDT test and chain of custody urinalysis are illusory.  The Mother was well aware of these issues when she entered into Consent Orders on 5 December 2016.

8. The Court accepts that there may be issues of parental capacity that warrant reconsideration at a final hearing.  The Mother was well aware of the limitations in the Father’s parenting capacity as at the time she entered into Consent Orders.

9. There are issues about parental attitudes that abound in this case.  These are matters best explored at a final hearing.

10. There is evidence of family violence, but again the complicating factor is that this was well known to the Mother at the time she consented to all final Orders.

11. In considering any other fact or circumstance that the Court thinks is relevant, the Court asks itself questions such as: why did the Mother consent to final Orders on 5 December 2016;  did the Mother make a mistake in so doing etc?  The Court observes that its responsibility when making Consent Orders is an onerous one.  It must be satisfied that Orders are in the best interests of the Children.  The Court, no doubt, would have noted the dissonance between the Orders proposed by the Mother in her Reply filed 3 May 2016 (supervised time at a contact centre or as otherwise agreed) and the final Orders that she signed.  The Mother was legally represented.  The Children were likewise represented.  The Orders were presented, on the face of them, as Consent Orders.  The Court is entitled to conclude that the parents, including the Mother and Independent Children’s Lawyer, considered these Orders to be in the best interests of [X] and [Y].  The Court reached the same conclusion. 

12. It is irrelevant in the present context that another Judge, fully appraised of the knowledge that the Mother must have had on 5 December 2016, would express grave reservations about the appropriateness of the Orders.  But the reality is that parents enter into Orders for all sorts of reasons in addition to a conviction that they are in the best interests of Children.  The Mother’s motives are unknown and may never be known.  For present purposes her motives are irrelevant.  It is her actions that matter.  She not only consented to Orders but, at least according to the Father, quickly breached them, and later unilaterally relocated to another State. 

13. This Court chooses to decide the matter on the basis that it is in the best interests of the Children that they be returned to Tasmania pending a final hearing.  This Court has consciously chosen not to dismiss the proceedings on the basis of Rice & Asplund.  It expressly leaves open the possibility that at a final hearing, another Judge may come to the conclusion that the totality of the evidence does demonstrate changed circumstances.  This Court is of the view that, despite reservations it has about the evidence, it does not enable it to conclude that there are changed circumstances that warrant a reconsideration of the Orders made 5 December 2016.  The Court recognises the possibility that even if there are no changed circumstances, it might be in the best interests of these Children to revisit these Orders.  But that should take place after a final hearing, with appropriate evidence which is duly tested.  In the meanwhile, the Children should be returned to where they originated.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:     10 July 2018