Sterry and Sterry

[2017] FCCA 2255

FEDERAL CIRCUIT COURT OF AUSTRALIA

STERRY & STERRY [2017] FCCA 2255

Catchwords:
FAMILY LAW – Children – interim – relocation – allegations of family violence – disruption to the child’s relationship with parent – child permitted to remain in South Australia.

Applicant: MS STERRY

Respondent: MR STERRY

File Number: ADC 2331 of 2017

Judgment of: Judge Kelly

Hearing date: 20 July 2017

Date of Last Submission: 20 July 2017

Delivered at: Adelaide

Delivered on: 20 July 2017

REPRESENTATION

Counsel for the Applicant: Mr McQuade

Solicitors for the Applicant: All Family Law

Counsel for the Respondent: Mr Anderson

Solicitors for the Respondent: Sexton Family Law

ORDERS

THE COURT ORDERS DURING THE PERIOD OF THE ADJOURNMENT THAT:

1. The child X born (omitted) 2013 and the mother are permitted to reside in South Australia.

2. The child X spend time with the father as follows:

   (a)from 10.00am until 5.00pm on Friday 21 July 2017 to take place in the presence of the maternal grandmother and either of the paternal grandparents;

   (b)from 10.00am Saturday 22 July until 5.00pm Sunday 23 July 2017 to take place under the supervision of the paternal grandparents or either of them;  and

   (c)thereafter each alternate weekend from 10.00am Saturday until 5.00pm Sunday to take place under the supervision of either paternal grandparent, commencing Saturday 5 August 2017.

3. All visits take place within 100kms of the Adelaide metropolitan area.

4. The father collect X from and return him to the maternal grandmother’s address on the basis that the father remain in the motor vehicle and either paternal grandparent attend to effect the handover with the mother or the maternal grandmother.

5. Liberty to the father to vary the dates for his time with X in Adelaide.

6. The child X have Skype or Facetime communication with the father on two occasions each week on Monday and Wednesday at 6.00pm (SA time) or such other week days as agreed between the parties and confirmed in writing.

7. All parties are restrained from:

   (a)abusing, criticising or denigrating the other parent or any member of their family in X’s presence and from allowing any other person to do so;

   (b)discussing any issues raised in these proceedings and any allegations raised with X or in his presence and from allowing any other person to do so;

   (c)discussing any issues raised in these proceedings or any allegations raised in these proceedings on Facebook or on any other social media website.

8. The parties or their nominees ensure that all handovers are conducted in a polite and respectful manner.

9. Pursuant to section 69ZW of the Family Law Act1975 the South Australian Police Department shall provide the Court with the following documents or information:

   (a)copies of any reports or notifications of child abuse allegations or allegations of family violence involving either of the parties MS STERRY (dob (omitted) 1993), MR STERRY (dob (omitted) 1987) or the infant child X (dob (omitted) 2013);  and

   (b)the outcome or findings of any such investigations including antecedent reports for each of the parties.

10. Without admission the mother is restrained from contacting the father’s employer in relation to any issues raised in these proceedings.

11. The hearing on 2 August 2017 before Judge Boyle in the Wollongong Registry of the Federal Circuit Court is vacated.

12. The father’s Affidavit filed 18 July 2017 is uplifted from the Court file to be refiled within 21 days in accordance with the Federal Circuit Court (Adelaide Registry) Practice Direction (limiting interim Affidavits to 10 pages plus five annexures).

13. The mother file any Affidavit in response within a further 21 days.

14. The parties undertake settlement negotiations in relation to property issues during the period of the adjournment.

15. The matter is adjourned to 6 November 2017 at 11.00am for further consideration.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2331 of 2017

MS STERRY

Applicant

And

MR STERRY

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally at the conclusion of an interim argument. They have been edited and corrected from transcript to correct any grammatical errors and generally to make my oral reasons easier to read.

1. Before the Court are the parties’ competing applications in relation to their child X, aged four years old.  It is not necessary to set out the  history of the parties’ relationship in great detail – the parties have been in a relationship for a number of years and have been living in the (omitted) or (omitted) region in New South Wales since 2011.  They separated in May 2017, when the mother moved to South Australia with X.  The mother had grown up in South Australia and seeks to remain living here, where she says she has support from her family.

2. The mother alleges that the father was physically, sexually and emotionally violent towards her during the relationship and that relocating to South Australia is the only safe option for her and for X.  

3. Both parties’ evidence suggests that their relationship had been deteriorating for some months, to the point where they had exchanged emails and/or text messages, in which the mother talked about wanting to ‘get away’ and the father made it clear that X should stay.  The father was sufficiently concerned that he instructed lawyers to write to the mother advising that he did not consent to her removing X from the (omitted) region.  I note this letter was dated 2 June 2017 and the mother left with X on 3 June 2017. 

4. There is no doubt that the mother knew the father did not want her to move away with X.  Equally she had made it clear to the father that moving to South Australia was her only viable option at the time, given that he insisted she had to vacate the family home where they had been living.

5. Both counsel quite properly acknowledged that there are clear legal principles that apply to interim parenting matters where one parent wants to relocate with a child.  The Full Court has affirmed numerous times that a trial judge should be cautious in permitting a significant change to the child’s living arrangements on an interim basis.  While all parenting decisions, including interim decisions, must be determined in accordance with the child’s best interests, generally the Court will be best placed to determine the child’s best interests once all the evidence has been heard and tested. 

6. To loosely paraphrase the current law, a parent who has relocated unilaterally may need to demonstrate that the child’s immediate best interests can only be preserved by permitting the relocation, even where the relocation may have a significant impact on the child’s capacity to maintain a relationship with the other parent. 

7. The father says that is precisely the situation here.  The mother relocated without his permission.  He denies the serious allegations of family violence that are set out in the mother’s affidavit and argues that he has not yet been charged with any criminal offence, despite the mother having made numerous statements to the police in recent times.

8. Counsel for the father referred to various documents annexed to his client’s affidavit, which refute the mother’s allegations of violence, in terms of the dates and timeframes she alleges.  For example the father says various shop receipts show that he was not even present at the home at the time of an alleged assault.

9. The mother’s allegations of violence are very serious.  The father’s evidence may well cast doubt upon the reliability of the mother’s allegations, but both parties’ evidence remains untested.  The Court does not yet know whether the police are still investigating the mother’s allegations or whether they are not pursuing the matter any further. 

10. Given the matters raised within the mother’s police statements, it would be surprising if there was not some ongoing investigation, but we simply do not know. A s.69ZW order directed to the police may provide some further information in that regard, and I intend making that order.

11. The father has denied most of the mother’s allegations, particularly the allegations of sexual assault.  While he may not have responded to each and every specific paragraph in the mother’s affidavit, it is clear that he refutes the mother’s account of their relationship. The father’s failure to respond to each specific allegation is not a turning point in my deliberations. 

12. That is particularly so when counsel for the wife chose to focus his submissions on a range of specific allegations that were historical and largely irrelevant, such as events that occurred around the time of X’s birth, or an alleged issue around breastfeeding versus formula.  It was surprising that counsel’s submissions focussed on what were less significant allegations of controlling or abusive behaviour, allegations that were some years old. 

13. In determining X’s best interests at this interim hearing, the Court cannot ignore the very serious and very detailed allegations of physical, sexual and emotional violence that the mother has reported to police.  Counsel for the father was critical of the mother’s failure to report these alleged assaults immediately, but with respect, the parties were still living together in a relationship at the time that the alleged offending occurred.   There may be many reasons why a party does not make a contemporaneous report regarding family violence and an ongoing relationship with the alleged abuser is one such explanation.

14. I appreciate that no charges may be laid against the father.  If charges are laid, those charges may not proceed.  Even if charges do proceed in the criminal courts, the father will be defending the charges and he is innocent until proven guilty.  However the evidence before me, while untested, raises real concerns at this time.  I conclude that the mother’s allegations of family violence are of such seriousness that it would not be in X’s best interests that he return to live in the (omitted) region.  I am not satisfied that the father is an appropriate primary caregiver for X at this time, given the serious allegations of violence, nor should the Court impose any implicit expectation upon the mother that she must accompany X back to the region.  

15. This decision will obviously have a significant impact upon X’s capacity to maintain a relationship with his father, in the short term.  X’s relationship with his extended paternal family will also be disrupted. This is a significant factor, given that the father and his family have played a significant role in X’s life, prior to the separation.  I weigh that disruption against the emotional impact upon X’s primary caregiver – and therefore upon X himself – if the child is required to return to live in the (omitted) area. 

16. While I conclude that X should be permitted to reside in South Australia for the time being, there is no reason why he cannot spend supervised time with his father.  This will ensure that X is able to maintain an ongoing relationship with his father, while protecting the child from the risk of exposure to abusive or violent behaviour.

17. The parties are having discussions regarding X spending supervised time with the father over the next few days.  I will make orders that facilitate supervised time between the father and X, but in South Australia, for the time being.

18. I now make orders as published at the commencement of these Reasons.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Kelly

Date: 15 September 2017