STRONG & STRONG

[2019] FCCA 233

FEDERAL CIRCUIT COURT OF AUSTRALIA

STRONG & STRONG [2019] FCCA 233

Catchwords:
FAMILY LAW – Interim parenting arrangements for care of children aged 11 & 8 – allegations of family violence – allegations of mental incapacity and alcohol abuse – nature of interim hearing – relocation of children interstate – relocation asserted to be justified because of mother’s incapacity and abandonment of the children – assessment of risk – issues relating to relocation – categorisation of emergency – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 65DAA

Cases cited:

Goode & Goode (2006) FLC 92-286

C & S [1998] FamCA 66

Morgan & Miles (2007) FamCA 1230

JG & BG (1994) 18 Fam LR 255

SS v AH [1][2010] FamCAFC 13

Deiter & Deiter [2011] FamCAFC 82

Slater & Light [2013] FamCAFC 4

U & U 2002 FLC 93-112

Applicant: MS STRONG

Respondent: MR STRONG

File Number: ADC 5351 of 2018

Judgment of: Judge Brown

Hearing date: 1 February 2019

Date of Last Submission: 1 February 2019

Delivered at: Adelaide

Delivered on: 6 February 2019

REPRESENTATION

Counsel for the Applicant: Ms Shepherd

Solicitors for the Applicant: Southern Vales Legal

Counsel for the Respondent: Ms Tinning

Solicitors for the Respondent: Camatta Lempens Pty Ltd

ORDERS

1. The father return the children of the marriage [X] born … 2008 and [Y] born … 2010 “hereinafter referred to as “the children” to the mother, at a location to be agreed between them and failing agreement to be the Suburb A Police Station, no later than 3.00pm on Saturday 9 February 2019, at his expense.

UNTIL FURTHER OR OTHER ORDER:

1. The mother and father take all necessary steps to ensure that the children are re-enrolled at the school which they previously attended in South Australia in the 2018 school year.

2. The children live with the mother.

3. In the event the father elects to remain living in New South Wales, pending final hearing, the children spend time with the father for one half of each South Australian school holiday, the half to be agree between the parties and failing agreement to be the first half.

4. In the event that the father elects to return to live in Adelaide, pending final hearing, the children live with each of their parents, on an equal time basis, moving between their parents’ respective residence on a week about basis at a time to be agreed between the parties and failing agreement to be the conclusion of school each Friday.

5. The father and the mother be at liberty to communicate with the children by telephone, video call and/or other forms of electronic communication with the children on a liberal basis on any occasion the children are in the care of the parent pursuant to these orders and failing agreement such electronic communication take place on each Wednesday and Saturday at 6.30 pm at the time of the location at which the children are then residing.

6. Each party is restrained and an injunction issue restraining them from denigrating the other in the presence or hearing of the said children or permit any other person to denigrate the other party in the presence or hearing of the said children.

7. Each party is restrained and an injunction issue restraining them from discussing the proceedings in the presence or hearing of the said children.

8. The parties exchange any information regarding the children’ care, welfare and development, including any relevant medical and educational issues and in respect of any necessary travel arrangements to implement these orders in writing via email to be exchanged between their respective email addresses and each shall endeavour to convey such information succinctly, clearly and politely.

9. The parties, at all times, keep the other informed of their respective contact details including details of their residential address; mobile telephone numbers; email addresses; telephone landlines; and inform the other of any changes of such details within twenty four hours of such change having occurred.

10. The child spend time with each of their parents on special occasions as follows:

    (a)At Easter at times to be agreed between the parties so that the children spend equal time with both of them during the period of Easter and failing agreement as follows:

    (i)With the father from 3:30pm on Good Friday until 6:00pm on Easter Saturday in 2019 and each alternate year thereafter;

    (ii)With the mother from 6:00pm on Easter Saturday until 9:00am on Easter Monday in 2019 and each alternate year thereafter.

    (iii)With the mother from 3:30pm on Good Friday until 6:00pm on Easter Saturday in 2020 and each alternate year thereafter.

    (iv)With the father from 6:00pm until 9:00am on Easter Monday in 2020 and each alternate year thereafter; and

    (b)On each of the children’s birthday so that the children spend at least three hours on their birthday with the parent who is not providing a residence for them on the occasion of their birthday at times to be agreed between the parties and failing agreement to be from 3:30pm until 6:30pm.

    (c)In the event that Father’s Day falls on a weekend when the children are in the care of the mother the children will spend from 9:00am until 6:00pm with the father on Father’s Day.

    (d)In the event that Mother’s Day falls on a weekend when the children are in the care of the father the children will spend from 9:00am until 6:00pm with the mother on Mother’s Day.

11. All changeovers to occur as agreed between the parties and in default of agreement at the children’s school.

12. In the event the children are suffering a medical condition or requiring medical attention while with either parent that parent shall notify the other parent by text message as soon as is practicable such notification to include the details of the practitioner or medical facility upon which the children attend.

13. The parties shall keep each other advised of medical appointments for the children and issues relating to the children’s health generally.

14. The parents shall do all such things and sign all such documents as to ensure that all medical practitioners and medical facilities be advised that both parents shall have access to the child’s medical records and the information contained within them upon request.

15. The parties shall keep each other advised of their landline and mobile telephone numbers and email addresses with each party notifying the other of any intended change within three (3) days of arrangements for the change being made.

16. Each parent shall have the right to obtain copies of the said children’s school, academic records, report cards, progress cards, school magazines and newsletters, school photographs (at their own cost), fees and enrolment information and such information pertaining to the children’s school and school related sports activities. 

17. Each party has the right to attend at the children’s school for all events that are routinely attended by parents. 

18. The parties facilitate the children’s regular attendance at any extra-curricular activities which the parties have agreed that the children should attend.

19. Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 15 August 2019.

20. The family assessment to deal with the following matters:

    (a)to include interviews with the parties, the child and relevant family members;

    (b)observed interaction between the child and the parties;

    (c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

    (d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;

    (e)any other matters that the family assessor considers important to the welfare or best interests of the said child.

21. The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.

22. Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

23. Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference

    NOTING:

    A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

    B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court

    C.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

24. This matter be listed for final hearing before Judge Brown on 28 & 29 November 2019 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.

25. Further consideration of this matter is adjourned for trial directions on to 29 August 2019 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 5351 of 2018

MS STRONG

Applicant

And

MR STRONG

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment concern interim or provisional arrangements for the care of two children, whose family is in a state of crisis.  How that crisis arose is controversial and the evidence available to me both uncertain in nature and lacking in independent corroboration. 

2. However, the crisis seems to have been precipitated, as many familial crises are, by flawed and mistrustful communications between the parents concerned.  Some of these communications in question have been oral in nature, others by way of text message. 

3. In these circumstances, it is difficult for an outsider to get a handle on what each party actually meant in their communication to the other or whether either or both of them have subsequently chosen to misinterpret the other’s communications in order to pursue their own ulterior motivations in respect of future care arrangements for two children concerned.

4. This lack of clarity has not been assisted by the manner in which the case has come to court with hastily prepared documents and affidavits which are responsive rather than discursive in nature.  It is also clearly the case that the parties do not trust one another and communicate poorly at present, if at all.

5. Fundamentally, the case concerns the interstate relocation of two children of tender years, far away from one of their parents.  In particular, whether the obvious crisis involving the family justified the removal of the children from the state in which they have lived for the vast majority of their lives to date with each of their parents.

Background

1. Ms Strong “the mother” and Mr Strong “the father” are the parents of [X] born … 2008 and [Y] born … 2010.

2. At present, [X] and [Y] are living, with their father, in Town B, New South Wales.  It is the father’s position that the mother surrendered the children to his care, in the latter months of 2018, because she was in a state of personal crisis, precipitated by mental illness and alcohol abuse. 

3. The mother’s position is that the father has overstated the crisis confronting her from October 2018 onwards.  She concedes she needed to take a break from providing care for the children but did not agree to their unilateral relocation to New South Wales.  

4. She asserts that the father has assumed the care of the children so that he can live with them and his new partner, at the location of his preference, which is in New South Wales, notwithstanding her lack of agreement to such an outcome.  In this context, she would characterise the father as a controlling person.

5. The parties met in 2006 and married on … 2008.  It seems to be agreed that they finally separated in February 2018.  Significantly, it is also agreed that they lived in Adelaide and its surrounds during their lengthy relationship. 

6. The father commenced a relationship, with his current partner, Ms C, on … 2018, some two months after the parties had separated.  Ms C lives in Town B, with her two children, [D] aged 10 and [E] aged 8.  As a consequence of his relationship, the father has moved to New South Wales.   In his affidavit material, the father deposes as follows:

   “I made the decision that my future is in New South Wales in September 2018 due to my new relationship and better employment prospects.”[1]

   [1] See father’s affidavit filed 29 January 2019 at [34]

7. The date is potentially significant.  Essentially, it may indicate that the father had decided his future was interstate, prior to the children coming into his sole care.  At this stage of his move, what the future arrangements for the care of [X] and [Y]’s care would be, if one parent lived interstate, was unclear.  By necessary implication, the father did not anticipate the children would be moving to New South Wales with him.

8. It is the father’s position that the mother’s ill-health, unpredictable behaviour and alcoholism constitute a significant risk for the children, whilst they are in her care.  Nonetheless, at least at one stage, he was contemplating moving to New South Wales alone.

9. In these circumstances, he asserts that there is no viable alternative other than the children continue to live with him, in New South Wales and, if the mother demonstrates she is dealing with her various issues, spending time with her, during school holidays. 

10. The mother characterises the father as a violent and controlling person, who bullied her during the parties’ relationship.  She refutes any suggestion that she intended to permanently place the children in their father’s care, rather, it is her position that he has unilaterally removed the children from Adelaide.

11. In these circumstances, she seeks orders that [X] and [Y] be returned to her care forthwith and that they live, with her, in Adelaide and spend time, with their father, during school holidays, if he elects to remain living in New South Wales. 

12. The mother commenced these proceedings on 28 December 2018.  At her request, they were given an urgent hearing date of 15 January 2019.  She deposed a brief affidavit, in support of her application, which was that the children should be urgently returned to her care.  Her evidence can be summarised as follows:

    ·when the parties first separated, they shared the care of the children;

    ·however, the father was unreliable in respect of the time he spent with the children;

    ·recently, the father had begun asking the children, if they wanted to live with him in New South Wales;

    ·this had caused the children to become anxious and they had refused to go to school because they were frightened their father might collect them from school and take them to New South Wales;

    ·on 27 October 2018, she had asked the father to care for the children for a six week period as she was moving into her parents’ home, as she was financially stretched;

    ·on 25 November 2018, she had contacted the children’s school, in Adelaide, to advise that she would be collecting the children, at which stage she was informed that they had not been at school since 20 November and were in fact in New South Wales with their father. 

13. Accordingly, at this stage, it was the import of her case that she had indicated to the father that he was to care for [X] and [Y] for a period of six weeks, at the conclusion of which the children were to be returned to her.  Whether this also meant that some form of shared care would be resumed is unclear to me. 

14. At this stage, the mother also made significant allegations that the father had been physically violent towards her, on a number of occasions, between 2005 and November 2017.  On this last occasion, police were involved and she alleges that she was taken for treatment at the Suburb F Hospital emergency department.

15. The father agrees that from the date of separation, in February 2018, the parties agreed that the children would live fortnight about, with each of their parents.  However, he asserts that due to the deterioration of the mother’s psychological health, he cared for the children for the majority of time following separation

16. He further alleges that when the mother was involved with the children, she was unpredictable in her behaviour and unilaterally changed arrangements by withholding the children from him, when it had been agreed they would be in his care.  He is also highly critical that the children have missed many days of school, whilst in their mother’s care.

17. It is the father’s position that the mother struggled with her mental health throughout the relationship, and this, along with her abuse of alcohol and other drugs, has significantly impacted on her ability to care for the children.  He categorises himself as a highly involved father, during the parties’ relationship. 

18. The father asserts that the children were in his care for approximately three weeks in August 2018.  The mother concedes that this was the case but only because she had been placed in domestic violence accommodation because of the father’s controlling behaviour towards her.  It seems to me that the parties’ communication with one another was extremely muddled.  As such, arrangements for the care of the children were in a state of flux.

19. Attached to the mother’s affidavit are text messages, which are not referred to in her affidavit, which indicate some form of acceptance of a week about arrangement.[2]  Later there are text messages indicating, as at 12 September, a 50/50 arrangement and for one unspecified parent to have the children for your two week Christmas closure and I have them for the upcoming school holidays.[3]

    [2]  Annexure S 2

    [3]  Annexure S 3

20. On the father’s case, things came to a head, in respect of what he found to be this unsatisfactory arrangement, on 26 October 2018, when he was collecting the children from their school in Adelaide.  At this stage, he and the mother allegedly had a private conversation, in which the mother indicated to him that she was feeling suicidal and therefore wished him to have the care of the children for “an undefined period of time”. 

21. At this stage, he further asserts that the mother was well aware that he was planning to go to New South Wales to spend time with Ms C.   In this context, he asserts that he and the children had previously visited New South Wales on five previous occasions to spend time with Ms C and her children.  Accordingly, by necessary implication, the mother must have been aware that he was planning to go and live in New South Wales permanently.

22. It is also the father’s evidence that he understood that the mother intended to seek medical assistance for herself at the Adelaide Clinic.  In a more recent affidavit, deposed by the mother, she has bluntly denied the father’s evidence about her situation in October of 2018. 

1. The mother denies that the father was an involved parent prior to separation.  She describes herself as their sole parent, who attended to all aspects of their practical care, with the father being confined to playing with them at his convenience.

2. The mother concedes that she has had longstanding issues to do with depression, from which she has suffered for the past six years.  However, she refutes any suggestion that her condition presents any permanent impediment to her caring for the children. 

3. In this context, she has provided a brief note from her general medical practitioner, which indicates she is compliant with anti-depressant medication and her mood is currently stable.  She did not seek treatment from the Adelaide Clinic in October of 2018.

4. Notwithstanding what he would characterise as the mother’s alarming disclosures regarding suicide and the prospect of her imminent hospitalisation, the mother retained the children, presumably after some form of discussion between the parties on 26 October.  The father asserts that, at this stage, it was agreed he would have the children from 7 November onwards. 

5. The mother also complains about what she regards as the father’s inappropriate treatment of a cough suffered by [Y] and eczema suffered by [X].  Issues which were also the subject of somewhat terse text messages. 

6. The mother’s case is that she felt mentally exhausted by what she regarded as the father’s on-going control of her.  It is also her case that the parties’ final separation had caused her a great deal of financial stress.  In these circumstances, she wanted to take a holiday with her parents to Tasmania.   She deposes as follows:

   “I had asked the father if he could have the children from the 7 November till around the 8 December 2018.  I had booked a holiday with my mum and dad to go to Town G and then to Tasmania for 3 weeks.  Instead of going on holidays I moved from my rental in Town H back to my mum and dad’s to help reduce the financial burden that the father has caused me as he refuses to assist in paying any of the joint mortgage on the Property J property.”[4]

   [4]  See mother’s affidavit filed 30 January 2019 at [22]

7. It was in this context that the mother sent the text message, which seems to be central to the father’s case.  The mother, in her affidavit, asserts she sent the message, which was a request to the father to take the children, so she could “go away.”  It reads as follows:

   “I’m heading down my path for a while.  6 weeks at this stage, maybe longer.  I need to heal and get away from things.  After Monday at work if they won’t give me an extended leave of absence and I need to resign you taking the kids from Wednesday will be great.  I am not going to survive this period of my life if I don’t make some drastic changes.

   You’ve ruined me financially, mentally and spirituality.  You have left me to pay everything.  I’m trying to make rent, mortgage, rates and you sit there doing nothing towards settlement because you don’t need to.

   You have daddy’s house to live in, large earning capacity and plenty of credit.  Travel when you want, call the shots with when you want the kids.  I’m done, I’m checking out for a while.”[5]

   [5]  See S 5

8. Thereafter, short text messages were exchanged between the parties, it would seem.  The father complained that he had to arrange his plans to accommodate the mother.  In later October, the father wrote an email to the mother saying he had “cleared his schedule to accommodate” and would be available in Adelaide from 7 November.  He then inquired whether the mother could “take the kids at all” and whether she was “going away”.  He asked the mother to consider having the children between 23 and 28 November.

9. The mother replied to this email as follows:

   “Mum and Dad are in Tasmania.  Sorry.  You will need to work something out.   If you get desperate, let me know. I might be able to come back for that time, but that’s not really the idea of what I am trying to achieve.  I would rather not.”[6]

   [6]  See S 1

10. In his affidavit material, the father asserts that he found the mother’s behaviour worrying.  He also asserts that he viewed some further text messages, passing between the mother and Ms C, which alarmed him.  I have not been provided with those messages.

11. The children have been in the care of the father since 7 November 2018.  Part of this period took place in Adelaide so that the children could finish their school year at their customary school.  On 13 December, the father and children returned to New South Wales, where they have been living in Ms C’s house ever since.

12. The father further deposes as follows:

    “On Monday 3 December 2018 I spoke to Ms Strong by telephone.  She again asked to care for the children for an indefinite period.  She was clear that she did not want any responsibility for the children at that time.  I was very concerned that she was intending to harm herself and was concerned for the children’s wellbeing and safety in her care.”[7]

    [7]  Ibid at [23]

13. Apart from the father’s assertion of the fact, there is no evidence that the mother has taken steps to actively harm herself.  In addition, there is no evidence that she has received any form of acute psychiatric or medical intervention so far as her mental health is concerned.  Her text message may be criticised for being unduly dramatic or hyperbolic or even selfish in its motivation, but it is not, on its face, evidence of mental infirmity on the mother’s part.

14. Nor, in my view, can it be described as an unequivocal and open-ended surrender of the children to the father’s care or, more significantly, unambiguous proof of the mother’s imprimatur that [X] and [Y] could move interstate to live with their father.  What the exchange does indicate is muddled communication and each parent being under some level of stress and annoyance with the behaviour of the other, in the aftermath of a difficult separation.

15. The mother’s position in respect of the father’s proposal for the children to remain living in New South Wales and for the proceedings to be transferred to the court’s registry at Wollongong is as follows:

    “I have never asked the father to have the children on a full time basis, nor did the father ask me if he could enrol them in a New South Wales Catholic Local School.”[8]

    [8]  See mother’s affidavit at [36]

16. The father is critical that the mother’s accommodation proposals for the children, if they are directed to return to Adelaide, pending final hearing, are inadequate.  The mother contends that, although she is currently in a difficult financial position, she can properly house the children. 

17. The father has qualifications as a health care worker.  The mother has had employment as a customer service officer.  The parties are also in dispute about how their marital property should be divided.  It is in the context of these very many controversies that the court must determine provisionally where and with whom of their parents [X] and [Y] should live.

18. The mother has asserted that both parties have previously had issues to do with their mental health and each has been referred for a GP mental health plan.  She also alleges the father has issues to do with alcohol abuse and violence.  Clearly, it is the father’s case that the mother has understated her mental health issues and has wrongly accused him of being violent.

The legal principles applicable

The nature of an interim hearing

1. Interim hearings very often arise against a background of serious family crisis and controversy.  Obviously this is the situation in the present matter.  Given the nature of the particular crisis involved, the court may be required to make any necessary determination expeditiously.  

2. Clearly again, given the 2019 school year has started, the court needs to determine whether [X] and [Y] should start school in New South Wales or return to their previous school in Adelaide.

3. The need for such expedition dictates that the hearing concerned should be truncated.  As a consequence, such a shortened hearing does not allow any extensive examination of the relevant evidence, particularly through a process of cross-examination.

4. Given the nature of the hearing, the various factual issues in dispute, between the parties, cannot be resolved in the context of these interim proceedings.  In addition, at the interim hearing stage it is rarely the case that there has been sufficient time for any independent and expert evidence to be prepared, evaluating the case from the perspective of any children concerned, particularly in the context of the nature of their relationship with each of their parents and what is their preferred outcome in the case, if any and what factors are influencing such views. 

5. The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed.  In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[9]

   [9]  See Goode & Goode (2006) FLC 92-286 at 80,901 [68]

6. Accordingly, at the interim stage, the court is directed to look to less contentious matters, such as any facts which are either agreed or obvious and issues which are not in dispute, particularly prior care arrangements and the current circumstances of the parties and any children concerned. 

7. There are many contentious factual issues in dispute between the parties, which can be summarised as follows:

   ·Primary care of the children prior to separation;

   ·Issues surrounding the parties’ separation in February of 2018 and care arrangements for the children thereafter;

   ·In particular, did more of the care of the children devolve onto the father because of the mother’s mental infirmity;

   ·What happened in October/November of 2018, when the father assumed care of the children?  

   ·Was it because the mother surrendered the care of the children to him because she was suicidal and realised she could not cope with the children;

   ·Did the mother consent to the children going to New South Wales and was her consent in regards to this issue sought;

   ·Issues to do with the mental health of each of the parties;

   ·The parties’ level of alcohol consumption;

   ·Issues to do with family violence.

How the court determines a child’s best interests

1. At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.  They are contained in Part VII of the Family Law Act 1975 “the Act”.

2. In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [see the Act at section 60CA].

3. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

4. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.

5. There are two primary considerations, which are as follows:

   a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

6. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

7. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

8. Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

   Parental responsibility

9. The legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [section 61DA]. 

10. The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.

11. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

12. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

13. Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].

14. Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.

15. By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.

16. If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents.  Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.

17. The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.

18. More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned. 

19. Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings. 

20. Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.

21. For obvious reasons, although the parties concerned in the current matter have considered their children living in a shared care regime, it will be obviously impractical to implement such a regime if the parties live in separate states.

Relocation Cases

1. Given the structure of Part VII of the Family Law Act, particularly in matters where the presumption of equal shared parental responsibility applies, cases involving one parent wishing to move a major distance away from the other parent concerned raise significant issues for the court and the parties concerned.  Such cases throw up competing principles, which are difficult to reconcile.

2. On the one hand, one of the purposes of the Family Law legislation is to provide former partners with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children, in the now changed circumstances following the end of the marital or de facto relationship between them.  There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.

3. On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both of his or her parents, regardless of the fact that the parents concerned chose not to live together.  As such, it has been said that relocation cases need careful analysis.[10]

   [10]  See C & S [1998] FamCA 66

4. The Full Court of the Family Court has indicated that it is preferable that issues relating to relocation should not be determined against a background of recent development, which significantly alters the relationship of the child concerned in regard to one or other of his or her parents, particularly if that recent development has been created by the actions of one parent alone.

5. Relocation has implications for the quality and intimacy of the parental relationship a child has with the absent parent.  These concerns are particularly pressing in respect of young or immature children.  In this particular case, I bear in mind what was said by Boland J in Morgan & Miles.[11]  Her Honour confirmed that the court should be reticent to determine issues of relocation at the interim stage.  She said as follows:

   “…It [is] highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C & S remain apt and relevant to determination of these cases”.

   [11]  Morgan & Miles (2007) FamCA 1230

Family violence

1. The concept of family violence is defined by section 4AB(1) of the Family Law Act.  It means:

   “violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”

2. Family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person.  In this case, it is the mother’s position that the father has, through his conduct, subjected her to such coercion.

3. Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.

4. The father denies the claims made against him.  Rather he asserts that it is the mother whose behaviour is labile and unpredictable.  In this context, he asserts that [X] and [Y] are at risk of being exposed to some form of neglect or abuse because of either the mother’s alcoholism or mental illness.

5. Family violence is not homogeneous in its qualities and can arise in a variety of contexts.  It is also recognised that family violence is prevalent in all walks of Australian society and represent a great threat to the wellbeing of children.   It also very often occurs behind closed doors and accordingly its independent verification may be problematic.

6. Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned.  Obviously the latter behaviour is the more damaging so far as children are concerned.[12]  Not all incidents of family violence will be necessarily damaging for a child.

   [12]  See JG & BG (1994) 18 Fam LR 255 at 261

1. In the current case there is no independent evidence to support either party’s criticisms of the other’s behaviour, which, if true, are likely to have significant implications for the welfare of these young children.  As yet there is no independent family report and scant medical and hospital records.  What documents, if any, the police can provide, is not known to me.

2. What is clear is that the parties’ relationship and certainly their separation appears to have been difficult.  In this context, the court must make some form of appraisal of the risk arising for the children, from each of the outcomes proposed by the parties.

3. The father’s case is that the children will be physically safe and secure if they remain living with him in New South Wales.  On the other hand, the mother asserts that the father has either exaggerated his concerns or consciously fabricated them so that he can gain advantage over her in his desire to achieve the children’s relocation.  She asserts that it will be potentially extremely emotionally damaging for the children of being deprived of the care of the parent who has been their predominant primary carer up to this stage.  On either case, the court must assess risk.

The assessment of risk

1. In this case, the court has to undertake its assessment of risk, at an interim stage of proceedings, prior to the provision of any comprehensive family report.  It must also do so when the stakes are extremely high, involving as they do issues of interstate relocation, which themselves have not been subject to any thorough level of scrutiny.

2. Accordingly, at the interim stage, it is difficult, if not impossible, for the court to characterise episodes of family violence or make precise findings in respect of allegations made in respect of a child suffering some form of neglect and/or abuse. 

3. However, given the structure of Part VII, particularly its emphasis on protecting children from the consequences of exposure to any form of abuse or neglect, the court cannot disregard such allegations because of the inevitable evidentiary difficulties, which arise at the interim stage, in definitively resolving the controversies arising.[13] Rather the court must “weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected…”

   [13]  See SS v AH [13][2010] FamCAFC 13

4. In Deiter & Deiter[14], the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.

   [14]  See Deiter & Deiter [2011] FamCAFC 82

5. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.  Risk arises in every aspect of human endeavour.  No individual’s life, including the life of a child, can be rendered entirely free of all risk.  In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis. 

6. The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it.  These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; and possible risks relating to the exposure of a child to an angry and unpredictable parent.

7. All these risks are present in the current case, as is the risk of depriving the children of having a parent being fully involved in their lives and care because of a potentially unjustified unilateral action of the other parent in taking the children concerned interstate.  The Full Court in Slater & Light expressed the task of assessing risk in the following terms:

   “The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [15]

   [15]  Slater & Light [2013] FamCAFC 4 at [37]

8. Finally, in the context of relocation, the court should be alive to the possibility of a parent moving back or to some location, which is not otherwise palatable to him or her.  In relocation cases, it is the best interests of the child which are paramount, not the interest of the parent concerned.  In U v U Hayne J pointed out

   “… it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing.  It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.” [16]

   [16]  U & U 2002 FLC 93-112 at 89,103

9. One of the difficulties of this case is that the father wants to present the mother with a fait accompli, in respect of the relocation of the children to New South Wales.  It is clear that she does not currently agree to such an outcome.  In the past, the parties do seem to have at least contemplated an equal time regime, posited on the basis of them living in the same location. 

10. This outcome is only available, at present, if Mr Strong returns to Adelaide, which has potentially serious implications for his relationship with Ms C and his desire to pursue employment opportunities in New South Wales; or Ms Strong moves to New South Wales, which she is disinclined to do because her family is in South Australia and she is happy here.

11. Accordingly, at this juncture there is no outcome which will keep each party happy and enable the fulfilment of each of their personal aspirations, following the end of their marriage.  These are fundamentally difficult issues, which are not amenable to being resolved through the agency of hasty text messages passing between the parties.  Necessarily, if the parties cannot agree the issues and it falls to the court to determine them, it should only do so on a level playing field, not one skewed to the advantage of one parent.

Discussion

1. The issues in this case are complex and, as such, are not amenable to complete solution in the context of a truncated interim hearing.  Rather, in my view, in order to serve the best interests of [X] and [Y], it will be necessary for the court to put in place orders, which will enable the fair and rational resolution of the various controversies arising between them, particularly those relating to the relocation of the children to New South Wales.

2. Such a resolution is not possible in the context of a truncated hearing such as this one.  At this stage, no findings of fact can be made about the various significant controversies arising between the parties.  In addition, particularly given the absence of any independent assessment of the children, the evidence is limited.  These factors mandate the allocation of a final hearing and the implementation of provisional orders in respect of the care of [X] and [Y].

3. The central issue arising in the case is the assessment of the magnitude of the various risks, identified by each of the parties and the potential impact of these risks on the welfare of the children.  Essentially each party asserts that the other parent represents a risk to [X] and [Y]’s safety. 

4. A further significant factor impacting upon the assessment of these risks is the fact that the children have been removed from the long running status quo of them living in the same location with ready access to both parents, each of whom has had a significant level of prior involvement in providing their care.

5. In my view, it is not appropriate, at this interim hearing stage, given the conflict between the parties and the various allegations of mutual parental deficits, for the presumption of equal shared parental responsibility to be applied, at this interim hearing stage. Rather, it is necessary for me to consider each of the relevant section 60CC factors and arrive at the outcome I consider will best serve [X] and [Y]’s best interests, whilst bearing in mind the truncated nature of the hearing before me.

6. In my view, the evidence available to the court at this stage, although cursory in nature, indicates that [X] and [Y] are likely to benefit from having a meaningful level of relationship with each of their parents.  The children must know both their father and mother well.  This must be the case as a consequence of the four having been a family, sharing the same household, for the vast majority of each of the children’s lives to date. 

7. In addition, when the parties separated, they ostensibly agreed that they would share the care of the children on an equal basis.  To my mind, this agreement, shaky as it undoubtedly was, indicates that both parents, to some degree, recognised the importance of the other to the children’s emotional development.  In these circumstances, it seems to me more likely than not that [X] and [Y] each love both their father and mother. 

8. In my view, this state of affairs also considerably lessens the potency of the significant criticisms each party has levelled at the parenting capacity of the other.  The evidence indicates that both the father and mother were prepared to entrust the care of [X] and [Y] to the other parent, for extended periods of time, notwithstanding their criticisms, each of which has a significant historical component. 

9. The mother was open to the children spending time regularly in New South Wales.  For the father’s part, notwithstanding his concerns regarding the mother’s mental instability, he requested that she have the care of [X] and [Y] for a week in November, which was after he alleges that she expressed suicidal intentions and her plan to seek psychiatric assistance for herself. 

10. More significantly, the father had made his decision to move to New South Wales, by necessary implication without the children, in September of 2018.  In my view, this undermines his assertion that the mother’s parenting of the children had been significantly compromised for a long period of time.  In my view, if this was the case, he would not have so easily contemplated moving to New South Wales. 

11. The theme of the father’s case is that the mother’s mental health suffered a rapid deterioration in October.  Apart from his assertion of the fact, there is no independent and expert evidence to support this assertion, which is not supported by the mother’s general medical practitioner. 

12. The mother characterises the father as a coercive and controlling person, who restricted her access to family funds and left her to shoulder the parties’ financial obligations, after their separation.  I am not able to determine the truth or otherwise of this allegation other than to say that I am satisfied that the parties’ separation was extremely difficult and must necessarily have had stringent financial consequences.  Two households cannot live as cheaply as one and clearly the mother was compelled to find alternative accommodation, for herself and the children, in difficult circumstances.

13. In these circumstances, it is hardly surprising that the mother would find herself stressed and emotionally stretched.  This does not necessarily mean that she is either permanently or for any protracted period of time disqualified from being significantly involved in the care of the two children concerned. 

14. Her correspondence to the father may be criticised as not being child focussed but, in my view, it is not expressly indicative of either mental collapse or a surrender of permanent responsibility for the children.  In any event, in my view, it would be imprudent for the court to place undue emphasis on a text message, written in imprecise language at a time of some emotional stress and reach the conclusion placed upon it by the father.

15. This is particularly so, in my view, in the absence of concrete evidence of the mother’ alleged medical incapacity and alcoholism.  I acknowledge that ultimately these concerns may prove to have substance. But so too may be the mother’s allegations that the father is a controlling person who, for reasons relating to the satisfaction of his own emotional needs, is intent on reducing the children’s level of relationship with her.

16. It is the mother’s case that she wanted a period of time out.  No doubt she could have communicated her desire in this regard better.  However, in my view, due to the longstanding issues in the parties’ relationship, their mode of communication with one another, particularly through the truncated form of text messages, is likely to be both compromised and muddled. 

17. In these circumstances, on balance, the father’s decision to permanently relocate the children from South Australia to New South Wales was a unilateral one.  He did not have the mother’s clear agreement to the move and, for obvious reasons, it is likely to impinge significantly upon the children’s entitlement to have a meaningful level of relationship with their mother.

18. The central question for the court is whether the circumstances confronting Mr Strong were such that he had no obvious alternative but to retain the children in New South Wales.  I am not persuaded that he faced such a situation of extreme emergency.  Clearly, it is likely to be to his advantage that the children remain living in New South Wales and why he would be disinclined to pursue the mother to any great degree. 

19. I can also understand why for reasons relating to his relationship with Ms C and the advancement of career opportunities he would want to live in New South Wales, with the children, whom he undoubtedly loves, close at hand.  However, in my view, he was not entitled to foist his personal preferences onto Ms Strong without a proper independent assessment of the overall best interests of the children concerned being undertaken.

20. In all the circumstances, I am not persuaded that the risks identified by the father in respect of the mother’s parenting are such to justify the unilateral relocation of the children interstate.  Whether it is, on balance, in the best interests of [X] and [Y] to live predominantly in New South Wales, with their father; or in South Australia, with their mother; or indeed whether there should be some other outcome; are issues for determination at final hearing not an interim one.

21. The father finds himself on the horns of a dilemma.  For powerful and readily understood personal reasons, he wants to live in New South Wales.  At the same time, he, like the mother, wishes to spend as much time as possible, with [X] and [Y], whom he fervently loves.  Necessarily, his preferred outcome has serious ramifications for the mother’s aspirations to be fully involved in the parenting of [X] and [Y], as the evidence indicates she has been in the past. 

22. I cannot compel either Mr Strong to return to live in Adelaide, where he has lived for many years; or direct that Ms Strong go to live near Town B, where she has never previously lived and where she has no familial support.  My authority resides only with the children, in respect of whom I am directed to put in place the orders, which I consider will serve their best interests.

23. In my view, the best interests of [X] and [Y] dictate that this difficult issue of relocation be properly considered and not determined against a background characterised by what I regard as a significant level of self-help on the father’s part. 

24. In these circumstances, I have come to the view that the issues of risk, raised by Mr Strong, are not of such moment that the children should not return to live in the Adelaide area pending the final outcome of the parties’ competing applications.  I will direct that the children be returned to the mother’s care, no later than 3.00pm on Saturday 9 February 2019, so that they can resume at the school, which they attended in Adelaide during the 2018 academic year.

25. In the event that the father elects to return to live in Adelaide, pending final hearing, given the strength of relationship the children have with each of their parents, I will direct that they live with each of their parents, on an equal time basis, provided the parties live within a seven kilometre radius of the children’s school, which they previously attended, in Adelaide. 

26. If the father elects to remain living in New South Wales, I will order that the children spend half of each of the South Australian school holiday periods, with him, in New South Wales, in recognition of the significant relationship [X] and [Y] have with him. 

27. It is also appropriate that each parent have liberal telephone and/or other forms of electronic communication with the children.  This should occur at least twice a week if the parents are living in separate states at times to be agreed between the parties and failing agreement to be on Wednesday and Saturday of each week at 6.30 pm at the time of the location at which the children are then residing.

28. The usual injunctions should be made restraining each party from abusing or denigrating the other parent in the presence or hearing of the children or discussing the moment of the proceedings before the court, particularly the contents of the affidavit material currently filed.

29. There needs to be better mechanisms for the parties to exchange relevant information about the children’s welfare between them.  Both parties should be authorised to attend appropriate school functions and discuss issues about the children’s education with teachers and staff.  Similar authorisation needs to be granted in respect of medical and ancillary issues.

30. I will direct that the parties exchange any information regarding the children, including travel arrangements to implement these orders and in respect of medical and education issues, in writing, by means of email.  This is with the intention that the communications in question have a level of formality about them and every attempt is made for information to be clearly and unequivocally expressed.

31. In this case, there is a clear need for a family report to be prepared, which can address the nature of the children’s relationship with each of their parents and the issues of family violence and other areas of risk identified in the case.  In conjunction with the preparation of this report, I will set the parties’ competing applications for hearing at the earliest date available to me.

32. It will also be useful for the views of the children to be canvassed in some independent way.  At this stage, this is yet another area of controversy arising between the parties – the father asserting that [X] and [Y] are happy and well-settled in New South Wales; the mother asserting that the children are pining for her.

33. I have endeavoured, as best I can, to untangle the conflicting accounts of what has occurred between the parties, since their difficult separation.  I appreciate that this cannot be regarded as being a completed task.  If established, the father’s criticisms of the mother are likely to be telling.  However, the fact remains, at this stage, they remain allegations.

34. There is no evidence to indicate that either child has suffered some specific incident of harm or neglect.  The father alleges poor school attendance; the mother counters with allegations the father had threatened to remove the children unilaterally from their school, causing them emotional distress. 

35. In my view, at this stage, the areas of risk delineated by each parent remain inchoate.  This factor dictates, as far as is possible, a return to the status quo, on which the parties ostensibly agreed following their separation in February.

36. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     6 February 2019