Summers and Small
[2011] FMCAfam 1009
•21 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SUMMERS & SMALL | [2011] FMCAfam 1009 |
| FAMILY LAW – Child aged 11 years – arrangement for care pending final hearing – unilateral relocation of chid from Adelaide to Darwin – mother asserts move dictated by father’s behaviour towards her – family violence – assessment of risk – considerations relating to relocation – section 60CC factors – best interests. |
| Family Law Act 1975, ss.60B; 60CC; 61DA; 65DAA |
| Goode & Goode (2006) FLC 93-286 Morgan & Miles [2007] FamCA 1230 |
| Applicant: | MR SUMMERS |
| Respondent: | MS SMALL |
| File Number: | ADC 2032 of 2011 |
| Judgment of: | Brown FM |
| Hearing date: | 16 September 2011 |
| Date of Last Submission: | 16 September 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 21 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tinning |
| Solicitors for the Applicant: | Von Doussas |
| Counsel for the Respondent: | Ms Mills |
| Solicitors for the Respondent: | DS Family Law |
ORDERS
The mother return the child [X] born [in] 2000 hereinafter referred to as “the child” to Adelaide by 6:00pm on Saturday, 8 October 2011.
UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:
In the event the mother elects to live in Adelaide, pending final hearing, the child live with the mother and spend time with the father as follows:
(a)From 9:00am on 10 October 2011 until 5:00pm on 15 October 2011;
(b)during each school term on alternate weekends of each fortnight from after school on Friday until the recommencement of school the following Monday commencing 28 October 2011;
(c)during school terms in the other week of each fortnight from after school on Wednesday until school recommences the following Thursday commencing 19 October 2011;
(d)for the first half of each school holiday period; and
(e)at any other times and on any other conditions as the parties may agree from time to time.
In the event the mother elects not to return to live in Adelaide, pending the final hearing of this matter, the child live with the father and spend time with the mother at times to be agreed between the parties or as otherwise directed by the court.
The mother and father shall:
(a)keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)Should a medical emergency arise in relation to the said child whilst the said child is in the care of either of her parents then the parent concerned shall notify the other parent as soon as practicable of the time and nature of such medical emergency, the name and an address of any treating medical practitioner and hospital attended by the child and the location of the child.
(c)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the child and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the child; and
(d)Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the child. This order authorises any treating medical practitioner to release details of the child’s medical condition and/or injury to the other parent.
In the event the child lives predominantly with the mother the father have telephone communication with the child at 5:30pm each Tuesday and Thursday.
In the event the child lives predominantly with the father the mother have telephone communication with the child at 6:30pm each Tuesday, Thursday and Sunday.
Upon the child’s return to Adelaide she be re-enrolled at the [L] School or the [M] School or such other primary school as the parties mutually agree.
In the event the mother fails to comply with order 1 hereof a recovery order issue in the normal form authorising the Marshall of the Court and officers of the Australian Federal Police to locate the child and deliver her to the father.
An injunction issue and each party be restrained from changing the child’s place of residence to one outside the municipal area of Adelaide without the written consent of the other.
An injunction issue and each party be restrained from denigrating or rebuking the other or discussing these proceedings in the presence of or hearing of the child.
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child [X] born [in] 2000 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to
Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
The matter is fixed for final hearing before Federal Magistrate Mead on 22 February 2012 at 10:00am NOTING 2 days allowed.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates 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 9 December 2011.
The Family Report to deal with the following matters:
(a)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;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
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 Child Dispute Co-ordinator.
Further consideration of this matter is adjourned to 2 November 2011 at 9:30am to enable trial directions to be made.
Liberty to apply on short notice in respect of consequential orders including handover provisions and any educational issues pertaining to the child.
IT IS NOTED that publication of this judgment under the pseudonym Summers & Small is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2032 of 2011
| MR SUMMERS |
Applicant
And
| MS SMALL |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are the parents of [X] born [in] 2000. [X] is currently living with her mother, at an address in Darwin, which has not been disclosed either to the court or the father.
The parties met in 1998 and finally separated on 6 February 2011. They have never been married. At the time of final separation, the parties were living together, in their former family home, at [L], with [X]. During their relationship, the parties have always lived in South Australia.
The [L] property has been sold. The father is currently living with his parents in [B]. He has plans to move in with his sister who lives in [M]. [X] has completed much of her primary school education at [L] School. She had one term at [M] School at the start of 2011. More recently, she has completed two terms at an undisclosed school in Darwin.
On 3 May 2011, [X] ceased attending [M] School. On 9 May 2011 the mother relocated [X] from suburban Adelaide to Darwin. She did not have the father’s consent to [X]’s move. This action, which lawyers categorise as a unilateral relocation, is the central issue of the current proceedings.
The father’s position is that, pending final hearing, the court should make orders resulting in [X]’s return to the Adelaide area. In these circumstances, he seeks an interim order that [X] live with him.
The mother’s position is that the court should not act precipitously in compelling [X]’s return to Adelaide. It is her position that the court should order an urgent family report and appoint an independent children’s lawyer for [X], with a view to urgently canvassing the child’s views as to where and with whom of her parents she would prefer to live, through these mechanisms.
In the short term, the mother proposes that the father could spend time with [X] during the forthcoming September/October school holidays. She has not provided extensive details as to how this contact would occur. Her formal application is that any time between [X] and her father be subject to supervision from an independent third party.
The applicable legal authorities are generally disapproving of a parent moving a child a significant distance away from the other parent concerned, without any consultation with that parent, unless the relocation can be ratified by the existence of some form of emergency or threat to the relocating parent and child, of such moment, that the move should be subsequently authorised.
The rationale for this principal is readily explained. Parents share responsibility for making major or long term decisions concerning their children. One such decision concerns a change to a child’s living arrangements, which makes it significantly more difficult for the child to spend time with a parent.
The mother’s position is that there were such circumstances of extremity in her particular case. She characterises the father as a person who has significant issues to do with alcohol consumption and smoking and who has been violent towards her in the past. It is also her case that the father has a significant psychological condition, which poses a threat to [X].
Counsel for the mother, Ms Mills also points to the fact that, notwithstanding the difficult issues raised by any relocation case, the best interests of [X] remain the paramount or most important consideration. As such, [X] should not be subject to any potential detriment on account of what the court may regard as the ill considered action of her mother.
Ms Mills submits that the evidence is clear [X] that has been living in Darwin since early May of 2011, a period now in excess of four months. In these circumstances, she submits that it would be contrary to [X]’s best interests for her to be uprooted from Darwin, where it is asserted she is now well settled, given the significant possibility that any subsequent final hearing may result in her return to Darwin.
This submission, it is said, lends weight to the mother’s proposal that there should be a more nuanced inquiry, involving the canvassing of [X]’s views, prior to any determination of the relocation issue, on an interim basis. Accordingly Ms Mills argues for a cautious approach to the issue of where and with whom [X] should live pending final hearing, given the time which has elapsed since [X] and her mother moved to Darwin.
The father’s position is that, if the court accedes to the mother’s position it may have the consequence of making any final hearing redundant. In addition, the determination of the issue of relocation would not be able to be determined on a “level playing field”. Rather, the proceedings would be skewed to the mother’s advantage because of her unilateral actions in moving [X] to Darwin without his approval.
More importantly, it is Mr Summers’ position that he has grave concerns that he will be able to maintain a meaningful level of relationship with [X], if she lives many hundreds of kilometres away from him.
He is also concerned that the mother has demonstrated, through her unilateral move of [X], that she has little regard for the importance of [X]’s relationship with him and, as such, she has demonstrated a compromised attitude towards the responsibilities of being a parent, one of which is to support and encourage a relationship between one’s child and the other parent concerned.
Reasons for delay
The father commenced these proceedings on 1 June 2011. This was about three weeks after [X] had moved to Darwin. At the time of his application, Mr Summers deposed that he did not know the precise whereabouts of either Ms Small or [X].
In these circumstances, he sought a Commonwealth information order, directed to Centrelink, so that address information concerning
Ms Small could be released to a process server and his application be personally served on her, as required by the court’s rules.
The information order was made by Turner FM on 29 July 2011. I am not altogether sure why the application for an information order was delayed. The hearing was then adjourned until 7 September 2011 to allow for service. In the mean time it seems that the mother had commenced her own proceedings seeking orders for property settlement in the court’s registry in Darwin in mid August.
On 7 September, following orders requiring the parties to file and exchange relevant affidavits of evidence in respect of their positions concerning interim arrangements for [X], the case was fixed for interim determination on 16 September.
The mother is critical of the father for not taking more proactive steps in regards to the proceedings, particularly between the date of the parties’ final separation and 1 June 2011. She points to the fact that during this period Mr Summers did not spent any time whatsoever with [X] and had only sporadic telephone communication with her.
The father’s position is that, in this period, he sought to engage the mother in a process of family dispute resolution at the [omitted] Family Relationship Centre, a process from which the mother withdrew. It is also his case that he attempted to contact the mother so that he could spend time with [X] but Ms Small was resistant to his overtures in this regard and would not always answer his telephone calls.
Ms Small concedes that she did not have Mr Summers approval to move [X] to Darwin and did not discuss the issue with him prior to her move. She has still not advised Mr Summers of her and [X]’s precise location. The mother says she spoke with a counsellor and a solicitor in Adelaide prior to her departure and was informed that she “could relocate from Adelaide to Darwin with [X].”[1]
[1] See mother’s affidavit filed 14 September 2011 at paragraph 12
Putting to one side the validity of this purported advice, it seems clear that the mother had some personal doubts about the extent of her parental authority to move [X] interstate in the absence of consent from Mr Summers. Certainly, by necessary inference, given the fact that she did not seek out his prior approval, she was aware that Mr Summers was not likely to agree to the move.
The evidence also indicates that she has been uncooperative with
Mr Summers, certainly so far as informing him of her plans; how she could be contacted in respect of arrangements for [X]; and involving herself in mediation.
Accordingly, whilst there has almost certainly been delay in the matter and, with hindsight it perhaps could have been expedited more, I am not satisfied that the delay is referable to Mr Summers’ conduct alone. It also seems to me that Ms Small has sought to harness any delay to her advantage.
The nature of an interim hearing
Interim hearings have to take place in a shortened form. There is no time available for the cross examination of the parties concerned. In addition there is usually insufficient time for all the available evidence to be to hand. The most common evidence, which is not available at the interim stage, is in the form of subpoenaed documents and any expert assessment which has taken place of the family concerned.
These types of evidence, coming as they do from independent sources, are very often central to the resolution of parenting cases at the final stage. In addition, for obvious reasons, at the final hearing stage, the parties concerned have more time to prepare their cases and call all the necessary witnesses.
Necessarily, the final hearing is a longer one than the interim hearing, which allows the court to make any necessary findings of fact – essentially deciding what evidence it accepts on the balance of probabilities, following its assessment of the truthfulness or reliability of the relevant witnesses.
The hallmark of many, if not all, interim hearings concerning children is that they arise against a background of emergency after some crisis has arisen in the lives of the parties involved, most often at their separation or some other significant event.
This is the background to the current case. The situation of crisis being the parties’ final separation and the mother and [X]’s move to Darwin, without the father’s prior approval. It is likely to take some time for the emotional consequences of these events to settle for each of the parties and for [X].
In this sense, the parties’ separation must be regarded as comparatively recent and, in my view, it is simplistic to assert that [X] is well settled in Darwin. To the contrary, in my view, the urgency surrounding the parties’ situation remains.
Such situations cause great difficulties for the court. It may not be able to make findings of fact about issues in dispute between the parties concerned because all the evidence needed to make such finding is not yet to hand. Yet the urgency of the situation and the degree of conflict and disputation between the parents concerned require that some form of decision be made expediently.
Such an interim forms a prelude to a more detailed and thorough investigation of the parties’ competing claims, which is available at the final hearing stage.
In cases involving urgent issues, such as relocation, a compromise between the evidentiary shortcomings arising from an interim hearing and the inevitable delays incumbent on a final hearing is for the court to make orders expediting the final hearing. Such an outcome being intended to reduce any prejudice occasioned to a party from the interim determination.
However the essential shortcoming of any interim hearing remains pertinent to the current case – it is impossible for the court to resolve disputed issues of fact at the interim stage, yet a decision must be made so that concrete arrangements can be made for the care of any child concerned.
The central issue in dispute between the parties, in the present case, is on the one hand whether the father is the violent, antisocial and abusive person portrayed by the mother or, on the other hand, whether the mother is the manipulative and controlling person, who is determined to get her own way, come what may, depicted by the father.
The legal principles applicable
The essential difference between an interim and final decision is that interim hearings do not determine long-term arrangements for the care of the child concerned, whereas final hearings do. However although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage.
In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act [see section 60CC].
What have been called the best interest considerations rest on two main pillars. The first is the importance to children of having a meaningful relationship with both parents. The second is the need to protect children from physical and psychological harm as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary consideration in how a court determines what is in the child's best interests by section 60CC(2).
Other criteria relating to how a court is directed to consider how the best interests of any children concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
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.
There is 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]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
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.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
In the case of Goode & Goode[2], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[2] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
Given the structure of Part VII of the Family Law Act, 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.
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.
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 his or her parents, regardless of the fact that the parents concerned chose not to live together. It has been said that relocation cases need careful analysis.[3]
[3] See C & S [1998] FamCA 66
Accordingly, it is usually considered preferable that issues of relocation not be decided at the interim stage, particularly as decisions regarding relocations may have potential serious ramifications for the children concerned, especially when those children are young, in terms of their ongoing parental relationships.
The consequence of any proposed move does not turn on the distance involved alone. In determining the consequences of such a move, what is likely to be highly relevant is the age of the child concerned.
For obvious reasons, the move of a baby or pre-schooler, in terms of the development of parental attachment, will be very different to those for a teenager, whose parental relationships are likely to be well established.
In addition, there may be financial considerations arising from the move. Wealthier families are able to cope more easily with issues of relocation because of their greater financial resources. Less financially equipped families may struggle to meet the fuel or other transport costs involved in relatively short moves.
In many circumstances, children are frequently able to maintain their relationships with significant people, including a parent, by less frequent periods of quality time spent in school holidays, which is supplemented by other forms of communication, such as telephone, webcam or letters.[4] As Kay J pointed out in Godfrey v Saunders[5] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[4] See D and S V (2003) FLC 93-137 at 78, 280
[5] See Godfrey v Saunders 208 FLR 287 at 298
It is a common occurrence, in contemporary Australia, for a parent to move voluntarily away, from a child or children concerned, after a relationship breakdown. In addition, children are often relocated away from one of their parents, as a result of a consensual decision made by the parents concerned. Often financial imperatives are involved.
These types of situation come about because of the high level of mobility in Australian society and the reality that many parents wish to pursue career and personal opportunities, in a different place to that in which they lived whilst in a relationship with the other of their child’s parents. High rates of divorce are also an incident of modern Australian life.
Although the shared parenting legislation has added emphasis to the principle that children benefit, in their emotional and social development, by having as extensive a relationship as possible with both their parents, there is no principle of law that the parents of children are required to live indefinitely close to one another, in order to ensure that such an optimal outcome is achieved. The recent legislative amendments have not changed this situation.
Pursuant to rights read into the Australian Constitution, Australians have a right to live how and where they choose. Australia is a free and democratic society, which prizes the freedoms of its citizens. Accordingly, the court cannot ignore the legitimate expectations of parties who come before it regarding these personal freedoms.
However, the best interests of any child concerned remain the paramount consideration in the outcome of every type of parenting case, including a relocation one. As one of the components of a child’s best interest is the right to have a meaningful relationship with both his or her parents, I must consider the adequacy of the arrangements proposed by the relocating parent for any child concerned to spend time with the other parent involved.
The provisions of the Family Law Amendment (Shared Parental Responsibilities) Act have added emphasis to the importance of a child maintaining a meaningful level of relationship with both of his or her parents.
However, they have not specifically prohibited the movement of a child away from one of his or her parents or placed some specific evidentiary onus upon the parent wishing to relocate. If the legislature had intended to prohibit such relocations, it would have specifically done so.
Rather, what the court is required to do is to weigh and balance the primary considerations and the additional considerations in respect of the parties’ competing proposals, to determine the best outcome for the child concerned.
In so doing, it cannot ignore a parent’s entitlement to freedom of movement. In my view, it is incumbent upon the court to consider these various principles at both the interim and final stage. I think this follows from the directions provided by the Full Court in Goode.
However, given the more limited evidence usually available at the interim stage, the court must exercise considerable caution, in respect of such relocation issues, when the evidence before it is necessarily provisional and untested.
Accordingly, 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.[6]
[6] See C & S [1998] FamCA 66
For these reasons, at the interim stage, the court is directed to exercise considerable caution in respect of its ratification, post event, of any so-called unilateral relocation. The reasons for this are obvious. Parents should not be encouraged to feel that they can take things into their own hands, and in the heat and emotional disconnection of separation, make decisions which will serve their own ultimate long-term aims, but not necessarily the best interests of any child concerned.
In my view, as far as possible, unless there are significant issues to do with the welfare or protection of the child affected, cases pertaining to relocation should be determined, as far as a possible, on a metaphorical level playing field between the parties concerned, uninfluenced by the post separation actions of the parent who has moved with the child.
In Morgan & Miles[7], Boland J 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 types of cases in which the child's present stability may be extremely relevant on an interim basis. It further appears to me that the comments of Warnick J in C & S remain apt and relevant to determination of these cases.”
[7] See Morgan & Miles [2007] FamCA 1230
With these considerations in mind, I turn to consider the respective cases of the parties and to synthesis, as best I can, any fact or circumstances either impliedly or actually agreed between them.
The father’s case
The father denies that he has an alcohol problem. It is his case that he ceased drinking on his 44th birthday. He is now 49. It is also his position that he has more recently stopped smoking. Accordingly, he asserts that these issues, of themselves, cannot be regarded as being barriers to him having a significant role in caring for [X].
More importantly, it is the father’s case that the mother has raised these criticisms as a pre-text to justify retrospectively her move of [X] to Darwin, a move which suits her own preferences. In support of his case, he points to the fact that, in November of 2010, the mother went to Darwin for ten days, leaving [X] in his care.
The mother is not in a position to dispute that she left [X] in the father’s care, for this extended period, prior to the parties’ separation. This suggests that she did not have significant concerns about the father’s capacity to parent [X], at the time. It also suggests that the mother had been considering her move to Darwin for some time. This is the father’s position.
He deposes that the mother, in the period leading up to separation, wished for the family to move to Darwin as a unit. The father did not wish to move to Darwin, which he asserts was one of the factors leading to the parties’ separation. The mother does not disagree that she suggested to the father that the whole family might move to Darwin together.
The father asserts that he has a close and loving relationship with [X] and the two have engaged in a variety of activities together. The mother accepts that the father has previously been involved in providing care for [X] but she has been [X]’s “primary carer”. She does however concede that the father has a “good relationship” with [X].
The father denies being psychologically unstable. He has provided brief reports from his treating general medical practitioner and a psychologist, whom he has been consulting since August of 2010. The general medical practitioner concerned refutes any suggestion that
Mr Summers has suffered episodes of instability or has issues relating to substance abuse. His diagnosis is one of reactive depression, in part precipitated by his current emotional circumstances.
The psychologist concerned confirms that Mr Summers has been suffering from “depression arising from relationship issues and difficulties adjusting to his new work.” No indicators of aggressive behaviour have been detected. As a consequence of this independent expert material, Mr Summers asserts that there is no independent evidence to support the mother’s assertion that his behaviour poses any form of threat to [X].
The father also denies that he has ever been violent towards the mother. To the contrary, it is his position that it is the mother who has a volatile personality and has been violent to her child, [Y], from an earlier relationship. In support of his position Mr Summers relies on an affidavit of Mr S, who is the former husband of the mother.
Mr S deposes as to his positive experience of the father. It is common ground between the parties that [Y] lived with them during their relationship. Mr S has no complaints about how Mr Summers interacted with [Y] in the past.
It is also his evidence that [X] and the father have a close bond together. He is critical of the mother’s temperament, deposing that she has a bad temper that could “snap just like the flick of a switch”. This is the father’s position also.
Overall, it is the father’s position that the mother has determined that she and [X] will live in Darwin regardless of his attitude towards the matter and, in order to achieve this outcome, she will make whatever false allegations she deems are necessary.
The mother’s case
The mother has not provided details as to where she and [X] are currently living in Darwin or where [X] is attending school. It is her case that she is not prepared to provide these details because of her fear of the father, whom she categorises as a violent and anti-social person.
The mother’s initial affidavit was filed in the registry of the court in Darwin on 5 September 2011. This affidavit asserts that Mr Summers was aggressive and violent towards Ms Small during the relationship. She also asserts that police were called to altercations between the parties and as a result of the father’s violence towards her, she has required hospitalisation in respect of injuries sustained by her, at the father’s hand.
She also deposed that Mr Summers had been prescribed anti-depressant medication following his expression of a suicidal intent. These assertions are not supported by the medical evidence collected by
Mr Summers. In addition, the mother has not provided any independent evidence to support her assertion that police have previously been involved in her relationship with Mr Summers or that she herself has been hospitalised as a result of family violence.
In her more recent affidavit, the mother provides more extensive details regarding her allegations of family violence. These come in response to the father’s assertions that the mother has problems with her temper and on one occasion this precipitated a physical altercation between the two.
This seems to have been the incident which resulted in the mother being hospitalised. The father’s position is that the mother struck him with both her fists and, at the time, he had been drinking. Without doubt this seems to have been a significant incident. However, it seems to have occurred approximately ten years ago and following the altercation, the father ceased drinking.
It appears to be the case the father ceased working towards the end of 2010. This decision on his part seems to have been a major bone of contention between the parties. In addition, it seems to have been a factor leading up to the break down of the relationship between the parties.
The mother’s sister lives in Darwin. She has two children aged fourteen and five and a half years. Following the mother and [X]’s relocation to Darwin, they lived with the mother’s sister for a few weeks before moving into their own rented accommodation.
At the present time, the mother is not in the paid workforce. She receives social security entitlements. It is her case that she is not currently receiving child support, for [X], from Mr Summers.
The parties have consensually sold their former family home at [L] and each has received a sum of approximately $100,000. The mother has used some of her funds to purchase a motor vehicle for herself and to repay moneys owed to her sister.
It is the mother’s case that [X] is happy and well settled in Darwin, where she has made friends and is enjoying attending her new school. It is the mother’s case that although [X] loves her father very much, she has currently expressed a “very strong wish” not to spend time with him at present.
Consideration of the applicable section 60CC factors
a) The primary considerations
At the interim stage, allegations of family violence pose a significant difficulty for the court. Such allegations are often difficult to corroborate or establish definitively. However all allegations of family violence must be closely examined by the court, given the serious consequences exposure to family violence may have for any child concerned.
Allegations of family violence are easy to make and difficult to refute. This is because family violence, more often than not, arises within the private confines of a family home and may evoke emotions such as embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised that family violence is prevalent in all social settings and walks of life.
It is also not unknown for parties who are engaged in acrimonious litigation with one another, regarding competing applications in respect of children, to raise issues of family violence for tactical reasons or to exaggerate or distort previous episodes of poor behaviour, in order to place the other parent concerned in a bad light.
However the absence of corroboration does not abrogate the court’s responsibility to deal with allegations of family violence stringently.[8] The court’s responsibility is to remain focussed on the best interests of the child concerned in the proceedings before it.
[8] See Amador & Amador (2009) 43 Fam LR 268
The concept of family violence is specifically defined in the Family Law Act [section 4]. It means conduct, whether actual or threatened, by a person towards another or towards the property of a member of a person's family that causes that or any other member of the person's family reasonably to fear for or reasonably to be apprehensive about his or her wellbeing or safety.
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.[9] Not all incidents of family violence will be necessarily damaging for a child.
[9] See JG & BG (1994) 18 Fam LR 255 at 261
Given that family violence is not homogenous in its qualities and can arise in a variety of context, at the interim stage, it is necessary for the court to assess the degree of risk which may come to any child concerned, if he or she comes into contact with the perpetrator of the alleged violence. It may also be necessary for the court to assess the consequences of such an outcome for the other parent and victim of the alleged behaviour.
These concerns must be balanced against the potential benefits to the child or children concerned of having a meaningful level of relationship with both of his or her parents. It seems likely that
Mr Summers has played a significant role in [X]’s life, up to this stage.
The mother’s allegations are not currently supported by any independent sources of evidence. There is no indication she has ever applied for a family violence order. The one serious incident of violence, in respect of which each party indicates the other was the major protagonist, occurred ten years ago.
It is also highly significant that the mother was prepared to entrust [X] to the father’s care, whilst she holidayed in Darwin in the latter part of 2010. It is also significant that the mother proposed to the father that he and she give Darwin a try as a new place for the family to live.
Accordingly, in my view, the evidence, untested as it is, suggests that [X] is likely to benefit from interacting regularly with each of her parents. Ms Small concedes that [X] loves her father very much indeed. This love and the previous level of relationship between the two are important factors in determining how the court should facilitate the relationship between father and child, at this interim stage.
The emphasis in the applicable legislation is on the benefits to a child of meaningful parental relationships. Meaning in child/parent relationships is likely to come from parent and child being able to interact in a variety of circumstances and conditions.
The opportunity to interact with a loving parent clearly has the potential to confer a great benefit on any child concerned. Children need the love of their parents. The years of childhood are important for children in terms of developing warm and intimate relationships with their parents.
The strength in parent/child relationships comes from parent and child being able to know one another at first hand and to have the facility to share memories and common experiences together. In this case, it is clear to me that the actions of Ms Small have severely curtailed this potential, so far as [X] and her father are concerned.
The central question in this case is whether, objectively judged, the circumstances confronting Ms Small, were such as to justify her extreme and unilateral step in moving [X] away from Adelaide, without any prior reference to Mr Summers.
Although I am not in a position to definitively assess the allegations of family violence made by Ms Small, I am concerned that her moving with [X] to Darwin was not a proportionate response to the level of threat involved, even if all the allegations asserted by Ms Small are subsequently made out.
It seems to me that, in the immediate aftermath of the parties’ separation, Ms Small gave little thought as to how [X] could maintain some level of relationship with her father. Mr Summers has been criticised for not being more proactive in instituting proceedings between the parties’ separation and when Ms Small and [X] left for Darwin.
In answer to these criticisms, the father has pointed to the fact that he was attempting to engage the mother in mediation, so that the two could work through their differences together. In this period he did not see [X]. The mother criticises him for this. However, she herself provides no information as to what she did to facilitate the important relationship between [X] and her father.
It is also the case that some months passed before Ms Small and [X] actually left for Darwin. Clearly Ms Small did so without first securing Mr Summers’ approval. Given the timeframe involved, this suggests that the move concerned was not motivated by any sense of immediate threat, on Ms Small’s part, but rather came about because it was the mother’s own personal preference to move to Darwin.
In all these circumstances, I have considerable reservations about how [X] may maintain a meaningful level of relationship with her father, if he remains living in Adelaide and she continues to live in Darwin. Certainly, the relationship between the two will be different if it is required to be maintained through forms of electronic communication and irregular school holiday contact.
One of the determinative factors in respect of any application for relocation is the means by which the child concerned will maintain a relationship with the parent left behind. Given the unilateral quality of the mother’s relocation and the fact that [X] has not had any form of meaningful interaction with her father for a considerable period of time, I have some reservations about Ms Small’s capacity to maintain and support the relationship between [X] and her father.
b) The additional considerations
I have no independent or objective assessment of what [X]’s views are in the matter. I am also concerned that given her age at present, (eleven years) it may be difficult for her to express a view.
It seems likely that Ms Small has been [X]’s primary carer up to this stage. This is a significant element of her case. She asserts that if she is fearful and unhappy, if compelled to return to Adelaide, where she asserts she feels insecure and threatened, this will have implications for her capacity to properly parent [X].
The evidence indicates that Ms Small was able to parent [X], for two or three months, in the period following the parties’ separation. The mother makes no complaint about the father’s conduct towards her during this period. To my mind, this defuses the force of her allegations against the father in the case.
The father is critical of the mother’s willingness and ability to encourage [X] to have a proper level of relationship with him, particularly in the event of the relationship being subjected to the vicissitudes of distance. At first blush, there seems some considerable substance to his position, given the flavour of unilaterality which suffuses the mother’s actions.
For reasons previously provided, it seems to me likely that [X] has a significant level of relationship with her father and other relatives on her paternal side. I also accept that she is likely to have a close level of relationship with her maternal aunt and cousins in Darwin.
On a prima facie basis the evidence indicates that Ms Small has some deficits in respect of her capacity to support and encourage [X] continuing to have a warm level of relationship with her father.
Ms Small would say that her actions in moving to Darwin were justified because of her safety concerns for [X] and herself. At this stage, I am not in a position to fully assess those concerns, other than to say that they are denied by the father and not currently corroborated by any independent source.
I accept that it will be inconvenient and expensive for the mother to return [X] to South Australia. She has said, through her counsel
Ms Mills, that she would not consider [X] coming into her father’s care so that she (Ms Small) could remain living in Darwin.
It is the mother’s position that the father can spend time with [X] in the forthcoming end of term three school holidays and during the Christmas break. She has not provided any specifics as to how these periods would be facilitated and, more importantly, how the incidental travel would be paid for.
It is a very long way from Adelaide to Darwin. Travel between the two locations has the potential to be expensive. It is very often the case that issues to do with the adequacy of “contact” arrangements are central to the court’s determination as to whether or not the relocation of a child should be ratified.
In my view, these considerations are likely to be central in the present case. They are difficult issues, which do not present a ready or obvious solution. In my view they are the types of issues which are more amendable to proper analysis at the final, rather than the interim stage.
At this stage, the mother’s allegations of family violence are inchoate and untested. There are no relevant family orders in existence. The father disputes the various allegations of family violence concerning him and assert that it is the mother who has the violent temperament rather than him.
Even if I accept the mother’s case at its highest, I do not think her moving [X] to Darwin was a proportionate response to the risk of harm involved, either to the mother herself or [X]. As such, I do not think it would constitute an unacceptable risk to [X]’s safety, if she returns to live in Adelaide, pending the final hearing. In these circumstances, the benefits of her maintaining a meaningful level of relationship with her father must be given significant emphasis at the interim stage.
The mother’s position is that the court should obtain a family report, in part to canvas [X]’s views about her father and the prospect of returning to live in Adelaide. I agree that [X]’s views are important, but they are not the centrally determinative factor in the case. I am concerned that the mother wishes to obtain a report in order to delay the hearing and to obtain justification for her move of [X] retrospectively.
In short, the mother wishes to adjourn the proceedings, whilst more evidence is gathered, which she hopes will subsequently support her actions. To a certain extent, this is putting the cart before the horse. In my view, the court must exercise considerable caution in such circumstances in respect of a parent unilaterally relocating a child far away from the other parent concerned.
This is particularly so given that, in the absence of specific order, parents share responsibility for making decisions regarding major long term issues to do with their children, one of which is a change in living arrangements which makes it significantly more difficult for the children to spend time with a parent.
The reasons why a unilateral relocation is justifiable should be apparent at the time of the relocation. It may not be in the best interests of any child concerned, if the court allows latitude to the parent who has moved to gather evidence retrospectively justifying the move, after it has occurred and after the other parent has objected.
In my view, the difficult and complicated issues relating to the mother’s wish to live in another state with [X] should be the subject of a proper and exhaustive hearing, in which all the necessary issues can be properly canvassed. The problem which potentially arises is that, if the mother and [X] remain living in Darwin prior to that hearing, it may significantly reduce the usefulness of the subsequent hearing.
I acknowledge that the mother has been resident in Darwin for a period of around four months. However this delay has come about because the mother concealed her whereabouts. Mr Summers was compelled to obtain a Commonwealth information order. The proceedings have been delayed in the court process. I do not think that it can be said that the father has ever acquiesced to [X] going to live in Darwin.
In my view, a consideration of the various factors arising under section 60CC favour the return of [X] to Adelaide pending final hearing. A final hearing is the appropriate forum to analyse the pros and cons of a relocation of [X] to Darwin, from the perspective of her best interests.
Given the troubled and muddled parenting relationship between the parties, I do not think it appropriate to apply the presumption of equal shared parental responsibility at this interim stage. Accordingly, I do not need to consider the issues of either equal time or substantial and significant time, and the question of the overall practicality of such outcomes, in the circumstances of the case.
Given [X]’s relationship with her mother, at this stage, I believe that the best outcome for [X] is if she continues to live predominantly with Ms Small, but in Adelaide as opposed to Darwin and so is able to spend regular periods of time with her father in his home environment.
My authority applies only in respect of orders pertaining to [X]. I have no direct authority to compel Ms Small to live anywhere. She has however indicated that, if it be the court’s order that [X] return to live in the Adelaide area, pending trial, she will return with her.
The father’s proposal is that the mother should return [X] to Adelaide during the forthcoming school holidays. This seems a reasonable proposal. I will direct that [X] be returned to Adelaide by 6:00pm on Saturday, 8 October 2011.
The Federal Magistrates’ Court operates on a docket system. This case has been allocated to the docket of Federal Magistrate Mead. The matter has come before me at the interim stage due to Her Honour’s temporary indisposition. I can see no reason why the matter should not be returned to Her Honour’s docket.
Given the urgency of the matter, from the mother’s perspective, I will arrange for the matter to be fixed for final hearing, before Federal Magistrate Mead at an early stage in the New Year, which is the earliest time Her Honour is likely to be able to accommodate the matter.
Given the mutual allegations each of the parties has made about family violence and other anti-social behaviour, I believe it is likely to be in [X]’s best interests that she be independently represented in these proceedings. In my view, such representation is also warranted given [X]’s age and the implications the mother’s desire to relocate her to Darwin may have on her, particularly in terms of her ongoing relationship with her father.
It is also appropriate that a family report be prepared to assist the court with the determination of the matter at the final stage. This report is likely to be more comprehensive if it is compiled in the context of both parties and [X] living in the same locale and both parties interacting regularly with her.
Given that it appears more likely than not that Ms Small has been [X]’s primary carer up to this stage and certainly since the parties separated now over six month ago, it seems it would be in [X]’s best interests if she lives predominantly with her but sees her father regularly.
The mother asserts that [X] does not wish to see her father at present. I am not in a position to assess the veracity of this assertion at the present time.
I note however that she spent ten days in her father’s care late last year, when it suited Ms Small. I also note Ms Small’s evidence that the father has a good relationship with [X].
The father’s preference would be for [X] to return to [L] School. However, given the sale of the parties’ former family home, this may not be practicable depending on where the mother chooses to live. He has no objections to [M] School.
It is uncertain where Ms Small will live pending final hearing. Her address will have implications for the appropriate school for [X]. I will direct that [X] be re-enrolled at either [L] School or [M] School or such other school as the parties agree. I note they are likely to have difficulty agreeing on this issue and perhaps hand-over arrangements. I will grant liberty to apply in respect of these matters.
In these circumstances, I am concerned that [X] may have become caught up in the conflict between the parties, precipitated by their difficult separation. It would seem likely to be beneficial to her to resume her relationship with her father.
At this stage, I propose that [X] should spend a block period of time with her father, during the October school holidays, upon her return from Darwin. Thereafter, it would seem appropriate to me that she sees her father on alternate weekends, during school terms, from after school on Friday until school recommences the following Monday.
In addition, I can see no reason why [X] should not see her father on one other occasion each fortnight, from after school on Wednesday until school recommences the following Thursday in the other week of each fortnight. However, I appreciate that at this stage it is uncertain precisely which primary school [X] will attend upon her return to Adelaide.
I will also list the matter for further directions, before Federal Magistrate Mead in about six weeks time, so that if necessary these arrangements can be fine tuned and arrangements made for the long school holiday, if necessary.
In the event that the mother elects not to return to Adelaide, pending the final hearing, [X] should live with her father and spend time with her mother at times to be agreed between the parties. I will make an order to this effect.
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 fifty-three (153) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 21 September 2011
0