Thayer and Caville and Ors

[2013] FCCA 2265

FEDERAL CIRCUIT COURT OF AUSTRALIA

THAYER & CAVILLE & ORS [2013] FCCA 2265

Catchwords:
FAMILY LAW – Parenting proceedings – Father relocated with 2 of 3 siblings – whether the children should live with the father or respondents – allegations of violence.

Legislation:  

Family Law Act 1975, Part VII

Goode & Goode [2006] FamCA 1346
Morgan & Miles [2007] FamCA 1230
C & S [1998] FamCA 66
Ember & Assadi [2013] FamCAFC 107

Applicant: MR THAYER

First Respondent: MS CAVILLE

Second Respondent: MS P

Third Respondent: MS J

File Number: WOC 602 of 2013

Judgment of: Judge Altobelli

Hearing date: 12 December 2013

Date of Last Submission: 12 December 2013

Delivered at: Sydney

Delivered on: 18 December 2013

REPRESENTATION

Solicitors for the Applicant: Coffs Coast Family Law

Solicitors for the First Respondent: Women’s Legal Service NSW

Solicitors for the Second and Third Respondent: Shoalcoast Community Legal Centre

Solicitors for the Independent Children’s Lawyer: Verekers Lawyers

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. All previous parenting Orders be discharged.

2. The Applicant Father, Second Respondent and Third Respondent are to have equal shared parental responsibility for making decisions about the long term care, welfare and development of X born (omitted) 2007, Y born (omitted) 2009 and Z born (omitted) 2011 (“the children”).

3. The child Z live with the Second and Third Respondents.

4. The children X and Y live with the Applicant Father in the (omitted) district.

5. The Applicant Father is to return to the (omitted) district no later than 21 January 2014 to accommodation suitable for the children and himself which is located such that compliance with these Orders is reasonably practicable.

6. The children X and Y are to spend time with the Second and Third Respondents from 31 December 2013 to 21 January 2014 with the Applicant Father to deliver the children to the (omitted) area at an agreed neutral venue, and failing agreement, at the McDonalds Family Restaurant in (omitted).  On 21 January 2014 the Second and Third Respondent are to return the children to the Applicant Father’s residence in the (omitted) area as he nominates.

7. Between 31 December 2013 and 21 January 2014, the Applicant Father may spend time with all three children on two separate occasions of three days provided he gives one week notice of the same.

8. As from 21 January 2014, and provided the Applicant Father has found suitable accommodation in the (omitted) area, the three children shall live with the Applicant Father for one week, and then the Second and Third Respondent for one week, and continuing on an equal time basis.

9. The Applicant Father may telephone the children when they are in the care of the Second and Third Respondent every second afternoon between 5pm and 6pm, and the Second and Third Respondent may telephone the children when they are in the care of the Applicant Father every second afternoon between 5pm and 6pm.

10. When the children are in the care of the Second and Third Respondents, the Respondent Mother may spend time and communicate with them, but only under the personal supervision of the Second and Third Respondents.

11. The parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the children or any of them and from permitting any other person to do so and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of the children or permitting any other person to do so.

12. No party is to be in the presence of the children whilst under the influence of drugs or alcohol over the prescribed limited.

13. Leave be granted to the Independent Children’s Lawyer to relist the matter on 72 hours’ notice.

14. The matter be adjourned to 30 January 2014 at 2pm for mention via Genesis Teleconference:

    (a)Dial the teleconference Access Number (omitted).

    (b)At the prompt, enter (omitted) followed by the hash (#) key.

THE COURT NOTES THAT:

(a)The Court requests the Applicant Father to consider the benefit to the children of the following, provided the accommodation that he finds for the children and himself, and compliance with these Orders, makes it reasonably practicable:

(b)That X attend (omitted) Primary School;

(c)That Y attend (omitted) Day Care; and

(d)That Y resume therapy at (omitted) at (omitted) for as long as (omitted) so recommends.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

WOC 602 of 2013

MR THAYER

Applicant

And

MS CAVILLE

First Respondent

MS P

Second Respondent

MS J

Third Respondent

REASONS FOR JUDGMENT

EX TEMPORE

Introduction

1. This case is about three children:  X, born (omitted) 2007 – X is seven years old, Y, born (omitted) 2009 – Y is four years old and Z, born (omitted) 2011 – Z is nearly three years old.  The applicant father is 34 years old.  He lives in (omitted) with X and Y.  The first respondent mother is 30 years old and lives in (omitted).  The second respondent maternal aunt is 33 years old and lives in (omitted).  The third respondent maternal great-grandmother is 81 years old and also lives in (omitted).

Parties Proposals

1. There are a number of competing proposals in this case.  Firstly, there’s the father’s proposal.  It is contained in an amended application signed on 10 December 2013, and, in short, he seeks orders for sole parental responsibility.  He would like all three children to live with him in the North Coast area of New South Wales and to spend time and communicate with the respondents on the fifth weekend of the school term and in school holidays, and with the mother’s time to be supervised by the second and third respondents.  In short, the father proposes that the three siblings be reunited and live with their father.

2. The mother’s proposal is contained in her response filed 12 December 2013.  In short, it is that Y and X return to the (omitted) but continue to live with the father and that Z continue to live with the second and third respondents.  Y and X would spend time with the second and third respondents on a week about arrangement.  The respondent mother would spend time with all three children when they are with the second and third respondent at times as agreed.  The practical impact of this proposal is that the father and the children would return to the (omitted) and the siblings are reunited on a week about basis.  No order is sought about the father’s time with Z, and the mother’s time with all three children is as agreed with the second and third respondents.

3. The second and third respondents’ proposal is more or less consistent with the mother’s proposal.  There is an alternative proposal in almost identical terms, except instead of week about time, it would be Monday to Wednesday in week 1, and Saturday to Wednesday in week 2, or round about 6 out of 14 days.  I note, again, the practical impact is that the father and the children return to the (omitted) and the siblings are reunited for an equal time, or a substantial or significant time basis.  Again, there’s no order for the father’s time with Z, and the mother’s time with the children is as agreed.

4. The Independent Children's Lawyer’s proposal is contained in a minute of order set out in Schedule One, which is, in effect, but not precisely, consistent with the father’s proposal. 

5. The Court suspects that the proposals of the first, second and third respondents simply omitted to prescribe for any time between the father and Z, rather than deliberately proposing that.  In any event, the Court will give them the benefit of the doubt in that regard. 

6. What their actual proposal is about the father’s time with Z is somewhat unclear, but the most likely scenario is that all three children are always together with each other, whether with their father, or with the second and third respondent.  And as it turns out, the Court doesn’t find, on an interim basis, that there is any evidence justifying the father being denied any time with Z, or indeed any restrictions on this time. 

Background

1. Let me provide some background history, which is relatively uncontentious except where I indicate this.  The children were raised principally by the mother and father till their separation in June 2012.  Having said that, it is apparent that the children spent quite some time at the (omitted) aboriginal community, where they were also cared for from time to time by the second and third respondents.  Indeed, in April 2011, for example, the parents agreed that Z should be cared for by the second and third respondents. 

2. There is a dispute about whether this was temporary or permanent.  What is uncontentious is that the father was the primary carer for the two older children, and all parties agreed that the mother lacked any capacity to care for the children due to her drug and alcohol and mental health issues of a serious magnitude.  It is uncontentious that Z has some health issues.  Despite the children living in separate households for quite some time, they have almost daily contact with each other.

3. The father says, and the others do not dispute, that as at February 2012, he had made the decision to move the older children and himself away from the (omitted) community.  He did so, but remained in the (omitted) area.  He says, and the others do not seriously dispute, that he tried to get Z back into his care.  The tension between the parties and their extended families appeared to increase from 2012 onwards, and a number of incidents occurred.

4. In August 2013, the father took the three children with him to live in northern New South Wales near (omitted), but later that month, pursuant to a Local Court order made in Nowra, Z was recovered into the care of the second and third respondents.  The father brought proceedings in this Court, and the Nowra proceedings were transferred to this Court.  The matter came before Judge Kemp on 3 September.  He appointed an Independent Children's Lawyer, ordered a Child Dispute Conference.  The matter came before me on the first time on 6 November.  Orders were made by consent for the children to spend time with each other and each of the other parties as well as to see the Independent Children's Lawyer.  Procedural directions were made, and the matter was listed for hearing before me on 12 December, and I heard the matter on an interim basis that day.

Documents Relied Upon

1. There was quite a substantial amount of evidence before the Court.

2. The applicant father relies on the following documents:

   a)Amended Amended Initiating Application filed 13 December 2013;

   b)Application in a Case filed 23 August 2013;

   c)Notice of Child Abuse, Family Violence or Risk of Family Violence filed 15 July 2013;

   d)Affidavit of Mr Thayer filed 15 July 2013;

   e)Affidavit of Mr Thayer filed 23 August 2013; and

   f)Affidavit of Mr Thayer filed 5 December 2013.

3. The first respondent mother relies on the following documents:

   a)Response filed 12 December 2013;

   b)Affidavit of Ms K filed 12 December 2013; and

   c)Outline of submissions filed 12 December 2013.

4. The second and third respondent relies on the following documents:

   a)Initiating Application filed 26 August 2013;

   b)Response filed 20 November 2013;

   c)Notice of Child Abuse, Family Violence or Risk of Family Violence filed 20 November 2013;

   d)Affidavit of Ms P filed 26 August 2013;

   e)Affidavit of Ms P filed 20 November 2013; and

   f)Outline of Submissions filed 12 December 2013.

5. The Independent Children’s Lawyer tendered the following subpoena material:

   a)Documents produced on subpoena by the NSW Police Force;

   b)Documents produced on subpoena by the ACT Government – Education and Training;

   c)Documents produced on subpoena by the ACT Government – Community Services;

   d)Documents produced on subpoena by the NSW Department of Family and Community Services;

   e)Documents produced on subpoena by the (omitted) Medical Centre

Applicable Law

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

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

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

   …

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

   (a) identifying the competing proposals of the parties;

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

   (c) identifying any agreed or uncontested relevant facts;

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

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

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

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

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

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

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

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

1. I acknowledge that the case outlines provided some further cases and, where relevant, I will refer to them.  There is one further authority to which I will make reference later, and that is the Full Court’s decision in Morgan & Miles [2007] FamCA 1230.

Contentions

1. The father’s case is, in effect, that his unilateral relocation was to escape family violence to which the children were exposed.  He also raised issues about the risk to the children in the (omitted) community.  It is his fear of family violence, he says, that precludes him from returning to the (omitted) area.  His desire is to reunite all three siblings.  His case is that in (omitted), in the area where he lives, he is well supported by family and other support services.

2. The case advanced on behalf of the mother and the second and third respondents is that there is no risk of harm or of neglect to the children if they return to (omitted) if they are in the care of the second and third respondents, and even if the father and the older children simply return to the (omitted) area, there would be no risk of harm either to him or to the children.  They present a very different perspective on the father’s so called family violence concerns.  They emphasise the arbitrariness of the father’s unilateral action and the particular impact on the two older children of being removed from the (omitted) aboriginal community and involvement in their culture. 

3. Whilst it was conceded that the mother did not have capacity to care for the children, concerns were also raised about the father’s parenting capacity, especially Z with her special health needs.  The Independent Children's Lawyer’s case is, in effect, that the main thing is to reunite all of the children, and that on balance, they should be with their father in (omitted).  The Independent Children's Lawyer contends that in view of all the evidence, the father’s parenting is adequate, that he has an extensive support system and is attuned to the need to ensure that the children enjoy their aboriginal culture.

The Evidence

1. At the outset, the Court wishes to recognise and acknowledge the difficulties that each party has had in preparing for the interim hearing on relatively short notice, amidst considerable complexity and managing, in the case of the mother, issues of capacity to give instructions, and, as regards all of the parties, managing issues of geographical distance.  The documents tendered in evidence are voluminous – indeed, at least 30 centimetres.  At the end of the day, the Court recognises that it is quite possible – indeed, highly likely – that the Court has had more time to reflect on this case and study the exhibits than the parties’ representatives had.  This is certainly no criticism of them. 

2. Nonetheless, a number of strong impressions can be formed from a study of the documents that have been produced on subpoena.  The first strong impression is this:  the respondent mother’s mental health issues are serious indeed.  They appear to be drug and alcohol related.  She has had multiple mental health admissions, the most recent of which was in August 2013.  Her issues include schizophrenia, aggression, disorganised behaviour, self harm, regular ice and THC use, non-compliance with anti-psychotic medication, past diagnoses of bipolar, borderline personality disorder and drug-induced psychosis. 

3. The mother has minimised the nature and extent of her issues in her own evidence.  Moreover, she seeks to attribute her issues to the relationship with the father, a matter that is quite inconsistent with the medical records indicating that her issues pre-dated their relationship.  Strangely, the evidence of the second respondent seems to gloss over the details and the risks presented by the mother, whilst acknowledging she has mental health issues, drug abuse and bipolar.  Strangely, the second and third respondents do not stipulate that the mother’s time with the children must be supervised, only that it is to be as agreed.  It is only the applicant father who insists on supervision in his orders.  The Court tentatively concludes that there is a real risk to these children of harm if they are left in the mother’s care without the closest scrutiny.  Only the applicant father presents as being truly alive to this risk. 

1. The second tentative conclusion relates to the concerns that have been expressed about the father’s parenting capacity.  The respondents raise some serious issues about this, particularly as regards Z, but certainly not limited to her.  This is somewhat inconsistent with their own proposal for the two children at least, and probably Z too, to live with their father equal time.

2. There is no proposal from the second and third respondents that all three children live with them – a significant matter in itself.  As regards Z, it is true she has been principally cared for by the second and third respondents, but this is in circumstances where the father has been left to primarily care for two older children as well as the respondent mother who had some very serious issues.  In other words, the evidence before the Court does not create the impression that it is any lack of parenting capacity on the part of the father that resulted in Z being cared for by the second and third respondents. 

3. Nonetheless, the fact remains that Z has not been primarily cared for by her father for an extended period of time.  As the Independent Children's Lawyer submitted, the relevant children welfare authorities do not appear to have concerns about the father’s parenting capacity.  The Court tentatively concludes that despite the assertions by the second and third respondents, there are no issues about the father’s parenting capacity.

4. Let me discuss the family violence allegations.  The father says that he relocated to escape family violence.  The evidence presented in the subpoenaed documents, and the other evidence, is somewhat more complicated.  Firstly, the Court explores the contention about family violence in the relationship between the father and the mother.  The mother says the family violence was perpetrated by the father in the relationship.  This is echoed in the evidence of the second respondent.  In the voluminous medical records produced in relation to the mother, there is but one reference that she makes to family violence, and that is generalised and unspecific.  This reference exists in the context of years worth of medical records where she appears not to have made one other complaint.

5. The father contends that the mother has perpetrated family violence.  There is ample evidence to corroborate this.  There are multiple recorded observations in her medical records of her aggression – indeed, extreme aggression and violence to others, including police, when having drug, alcohol or mental health episodes.  The COPS entries record multiple attendances at the mother and father’s home which result in no complaint being made.  The Court forms the impression that the relationship between the parents was a conflictual one, but the evidence seems to suggest that the mother was the violent one, especially when under the influence of drugs, alcohol or experiencing a mental health episode.

6. Secondly, the Court explores the father’s contention about family violence in the (omitted) community.  There is no evidence directly on this issue.  Significantly, though, at paragraph 50 of Ms P’s affidavit, she deposes as follows:

   Nan and I do not want to expose the children to alcohol and drug abuse in our household, nor in the (omitted) community. 

   This is somewhat of a concession of her own concerns about these issues in the community. 

7. Thirdly, it’s necessary to examine the evidence about the father’s own role in the family violence incidents that he asserts led him to relocate with the children to (omitted).  He relies on one incident in August when he was assaulted by the mother’s brother, but a closer look at the evidence suggests this event has its genesis somewhat earlier.  It is, in fact, the third and the latest of three incidents that year. 

8. The first incident appears to be when there was a scuffle between the father and the maternal great-grandmother.  Oddly, the father does not tell the Court about this.  In the police records, he says that it was an accident leading to the maternal great-grandmother being pushed over.  An AVO was made against her, protecting him.  Again, he does not tell the Court about this.  The second incident appears to occur a short time later and happens in the surf at (omitted) when the mother’s brother punches the father in the face, apparently as payback, it would seem, for the assault on the maternal great-grandmother.  No police action is taken about this.  The third and culminating incident is when the father says the mother’s brother assaulted him with an object in front of one of the children.  Even the Magistrate who heard the charges accepts this, but found that the father indeed struck the first blow.

9. The report of the Court case that was given by counsel for the mother’s brother is quite unflattering so far as the father is concerned.  No conviction was entered in relation to the brother.  Indeed, the second respondent’s recollection of this event presents the father as the person who struck the first blow. 

10. The documents present a somewhat clearer overview of the violent incident, and, in fact, it would seem to have been the culmination of multiple diverse prior incidents. It would seem that the father was an active participant in the incident that he portrays himself to be the innocent victim of.  Yes, there was family violence.  Yes, it occurred in front of one of the children, and yet the father seems to be far from the innocent victim that he portrays himself as.  Thus, the Court tentatively concludes that there was violence of which the father was both a victim and a perpetrator, and to which the children were exposed. 

11. Some of the records suggest that the father was quite opportunistic about his violent incident with the mother’s brother and was perhaps using it as the pretext to relocate with the children.  Whilst this is a matter ultimately for cross-examination at the final hearing, there may well be some substance to this.  The Court is also concerned about some other seeming inconsistencies in the father’s evidence and other sources.  Thus, for example, he presented his relocation as something that the child welfare authorities supported, and yet he told the school counsellor that the child welfare authorities told him to wait for a Court order.

Discussion

1. With those factual matters in the background, I turn to discuss some relevant legal principles and how they apply.  This is a complex case, the resolution of which will ultimately turn on matters of evidence, both expert evidence and lay evidence.  Whilst the Court can form some impressions at an interim hearing, these are not the same as findings.  An interim decision will probably last about six months till a final hearing.  That six month delay is primarily attributed to the need to get approval from the Legal Aid Commission to fund an Expert’s Report, to then find an expert and for that expert to present a report.

2. In passing, the Court notes the delay exists in this regard, whether the matter remains here in Wollongong or whether it is transferred to the Family Court in Sydney.  Insofar as the case is based on fleeing family violence, it is not a case that is established on the evidence before the Court.  The situation is far less clear-cut than what the father asserts.  His own involvement needs to be considered. 

3. In any event, a return to the (omitted) area does not necessarily mean that the children are exposed to family violence, provided the father can be kept away from members of the mother’s family.  If the father is removed from the picture, and provided the mother’s time with the children is supervised by the second and third respondent, the risk to the children of either being subjected to violence or neglect, or exposed to family violence, is, in this Court’s opinion, an acceptable one. 

4. Insofar as the father’s case is based on the stability and support systems that he has in place in (omitted), all of this is a matter of recent creation, is new and is untested.  The Full Court, in Morgan & Miles, made a number of comments relevant to these circumstances in paragraphs 82 to 88 (emphasis added):

   82. It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.

83. I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent.

84. The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.

85. In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph. Whilst lengthy, it aids understanding to set out the relevant passages from Goode:

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

86. I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to 
s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.

87. As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.

88. It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.

1. That, of course, leads to that quote from the decision of the Full Court in C & S [1998] FamCA 66 where his Honour says that:

   It is clear that the interests of any child or children are very much connected with any questions directly affecting those children, such as a relocation, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child, or circumstances of the child, with regard to one of its parents, from what it or they had been immediately beforehand.

Orders

1. The father would have the Court do in this case precisely what the decisions that I have referred to have said ought not to be done.  Once the significance of family violence is taken out of the equation, the case for return becomes a very strong one from a best-interests perspective.  The effect of any such order is, the Court accepts, to require the father to return to the (omitted) area.  There is no question about the Court’s power to do so, and a recent example of this is the Full Court’s decision in Ember & Assadi [2013] FamCAFC 107. He should run his relocation application on its merits, based it on tested evidence and properly focussing on the best interests of the children at a final hearing. He came from (omitted), so he can go back to the (omitted) area. He can draw on the support system he had in place in the (omitted) once again.

2. For the time being, the Court accepts that the imperative is to reunite the children.  This time of year presents a relatively good time to bring about a change in routine for the children.  The fact is that both Y and X are likely to have time off school and preschool anyway.  They are to be returned to the (omitted) no later than 31 December.  They can then spend until 21 January on holidays with their mother – supervised, of course – by their great-grandmother and aunt and Z in (omitted). 

3. This will give time to the father to find suitable accommodation in the (omitted) area, but not at (omitted).  Provided he has found suitable accommodation by 21 January, then the two older children return to his care, as does Z, and, thereafter, a week about arrangement is to be implemented, provided, if at all possible, they go to one school and one preschool.

4. The Court is not prepared to make the orders for the particular schools that the respondent nominated.  Whilst the Court can see the benefit of the proposal, the father’s accommodation is a relevant factor in determining where the children go to school.  He must find accommodation that makes an equal shared care arrangement reasonably practicable.  The matter will be relisted for mention before me late January to ascertain progress in this regard.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  20 January 2014

Schedule One

The Independent Children’s Lawyers Proposed Minute of Orders

1. That the father have sole parental responsibility for the children X born (omitted), 2007, Y born (omitted), 2009 and Z born (omitted), 2011 (“the children”) in relation to the care, welfare and development of a long term nature involving the children to include, but not limited to, issues about:-

   (a)The education of the children – both current and future;

   (b)The religion of the children;

   (c)The health of the children; and

   (d)Any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with any parent.

2. That the father is to keep informed the mother, the maternal aunt Ms P and the maternal great grandmother Ms J, all decisions involving the children with respect to their education, religion, health and the children’s living arrangements.

ORDER FOR DAY TO DAY CARE WELFARE AND DEVELOPMENT

1. That the father shall have sole responsibility for making decisions about the children’s day to day care, welfare and development during times the children live with or spend time with the father.

2. That the mother, in consultation with the maternal aunt Ms P, have sole responsibility for making decisions about the children’s day to day care, welfare and development during times the children spend time with the mother.

ORDER FOR LIVING WITH EACH PARENT

1. That the children shall spend time with the mother detailed as follows:-

   (a)All time spent by the children with the mother is to be supervised by the maternal aunt Ms P and in conjunction with the maternal great grandmother Ms J and such time will occur at either the residence of Ms P or Ms J;

   (b)During the school term such time falling on the weekends occurring at the end of week 3 and week 6 of the school term commencing from 2.00pm Friday until 2.00pm Monday of each designated weekend;

   (c)For one-half of each of the New South Wales gazetted school holidays falling at the end of term 1 and term 3 commencing at 2.00pm on Saturday and concluding at 2.00pm the following Saturday, being the first half of each school holiday period;

   For the school holiday period occurring at the end of term 2 commencing from 2.00pm on Saturday after the children finish school and concluding two weeks later at 2.00pm on the Saturday; and such additional holiday period to include National Aborigines and Islanders Day Observance Committee (“NAIDOC) week which runs for the first week of July in each year.

   (d)For one-half of the Christmas school holidays in each year commencing at 2.00pm on the first Saturday when school concludes at the end of term 4 to 2.00pm Wednesday 2½ weeks later in odd numbered years and in even numbered years to commence on Saturday two weeks after school term concludes for a period of 17 days concluding at 2.00pm on the last day.

   (e)At other times as agreed between the parties.

2. The children shall live with the father as follows:-

   (a)At all other times when the children are not spending time with the mother; and

   (b)At other times as agreed between the parties.

IMPLEMENTATION OF CHANGEOVER

1. The parties agree that for the purposes of changeover, the father is to facilitate and transport the children from his home to (omitted) Railway Station at Sydney for changeover to be effected at 2.00pm on Friday if it falls during the school term, 2.00pm on Saturday if it falls in the school holidays and the children are to be returned by the maternal family for collection by the father on Monday at 2.00pm at (omitted) Railway Station at Sydney during the school term and at 2.00pm on the allocated day falling in the school holiday periods.

2. All parties are to communicate to ensure that the changeover is effected to ensure the comfort of the children.

3. All parties be restrained from consuming any alcohol to excess, drugs or any illicit substances in the presence of the children or to be in any way affected by them whilst the children are living with or spending time with them.

4. All parties are to use their best endeavours to ensure that the children are not exposed to intoxicated persons or any form of domestic violence.

5. That for the purpose of communicating information between the parties, the father and the mother and the maternal family shall communicate by:-

   (a)Letter; and

   (b)Message by SMS or other forms of communication.

1. That the father shall ensure that the mother and the maternal family are kept informed as soon as reasonably practicable of any:-

   (a)Any medical problems or illness suffered by the children whilst in the care of the father;

   (b)Any medication that has been prescribed for the children;

   (c)Any specialist medical appointment with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

   (d)Any social, school or religious functions which the children are to attend;

   (e)The residential address of the father;

   (f)The telephone number of the father; and

   (g)Any other matter relevant to the welfare of the children.

2. The maternal family are to keep the father informed as soon as reasonably practicable of :-

   13.1any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child/ren;

   13.2any social, school or religious functions which the child/ren is to attend;

   13.3the residential address of the Mother and the maternal family;

   13.4the telephone contact number of the Mother and the maternal family;

   13.5any other matter relevant to the welfare of the children.

3. That the father continue to support the children as being children of the (omitted) Aboriginal People and encourage and educate the children in all aspects of their culture and to assist the father in this regard the maternal family agree to provide to the father guidance and educational support of their Aboriginal culture, specific to their language group and lands to the children during times they spend with them.