Thomas and Carlyle
[2011] FMCAfam 1094
•14 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THOMAS & CARLYLE | [2011] FMCAfam 1094 |
| FAMILY LAW – Children - child aged two years five months – arrangement for care pending final hearing – unilateral relocation of child from [M] to Western Australia – 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 (Cth), ss.4, 60B, 60CC, 60CG, 61DA, 65DAA Federal Magistrates Regulations 2000 |
| Goode & Goode (2006) FLC 93-286 C & S [1998] FamCA 66 D and S V (2003) FLC 93-137 JG & BG (1994) 18 Fam LR 255 The Marriage of Patsalou (1994) 18 Fam LR 426 Blanch v Blanch & Crawford (1999) FLC 92-837 Re L (Contact: Domestic Violence) [2000] 2 FLR 334 U & U (2002) FLC 93-112 |
| Applicant: | MR THOMAS |
| Respondent: | MS CARLYLE |
| File Number: | ADC 3052 of 2011 |
| Judgment of: | Brown FM |
| Hearing date: | 30 September 2011 |
| Date of Last Submission: | 30 September 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 14 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cocks |
| Solicitors for the Applicant: | Mason Westover Homburg |
| Counsel for the Respondent: | Mr Cole |
| Solicitors for the Respondent: | Terrace Law |
UNTIL FURTHER OR OTHER ORDER
The child of the relationship [X] born [in] 2009 live with the mother.
The father spend time with the aforesaid child and communicate with her at such times and subject to such conditions as the parties may agree upon from time to time.
This matter be listed for final hearing before Federal Magistrate Brown on 1 & 2 March 2012 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child/children 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 16 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.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 20 January 2012.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 3 February 2012.
On or before 20 January 2012 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.
The parties have liberty to apply on seven (7) days written notice in respect of any consequential matters including the matters specified in paragraph 172 of the reasons for judgment herein.
IT IS NOTED that publication of this judgment under the pseudonym Thomas & Carlyle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3052 of 2011
| MR THOMAS |
Applicant
And
| MS CARLYLE |
Respondent
REASONS FOR JUDGMENT
Introduction
[X] is two years five months old.[1] Necessarily her relationships in life are not yet fully formed. She is a child of tender years, who is developing from day to day.
[1] Her date of birth is 7 May 2009
[X]’s parents are Mr Thomas and Ms Carlyle. They have never been married. They met in [M], in rural South Australia, at some time in October 2006.
The mother says that their relationship was initially a casual one and the parties did not live together until early 2009, in the months leading up to [X]’s birth, which was not planned. The father says they began to live together in 2006.
The parties finally separated on 3 June 2011, when the mother and [X] moved to [C], a suburb of Perth. The mother has no desire to return to [M] and says she will not do so. She asserts her move was justified by the father’s abusive behaviour towards her. Her preference is to live in Western Australia.
The father remained in [M] and wishes to continue to do so. This geographical situation poses a dilemma for the court. If [X] remains living in [C], her relationship with her father is unlikely to develop in the crucial early years of her life. Most probably, she will forget who her father is, unless she either returns to [M] or he moves closer to [C].
The parties agree that their relationship was not always happy. Both say the other was physically abusive towards him or her. The parties have very different views about who has provided care for [X] during their relationship and the degree of commitment the parties had for one another.
The father says he had to defend himself from the mother’s physical attacks on him from time to time. The mother says the parties’ relationship was “dysfunctional” as it was marked by frequent arguing. She says the cause of the problem in the parties’ relationship was largely the father’s alcohol abuse and poor control of his temper.
The mother says as follows in her affidavit:
“The applicant father was verbally abusive of me every day during the relationship. He would refer to me as a stupid bitch, a dumb cunt and other such names. The verbal abuse would be more severe when he was intoxicated. He was physically abusive of me on average once a fortnight, usually when he was intoxicated. On one occasion I recall he broke my nose when he head-butted me and punched me on the side of the head. He would often punch me in the side of the head, stating that it would not leave bruises. On occasions I would visit my doctor, Dr S of the [omitted] clinic as a result of assaults. Dr S is aware that I was the victim of domestic violence.”[2]
[2] See mother’s affidavit at paragraph 14
It is common ground between the parties that there was a violent altercation between them, at their former family home in [M], in May 2011 to which the police were called. The father says he called the police and reported the mother for assaulting him. The mother says the father was the aggressor on this occasion and shoved a plastic drink bottle in her eye, causing bruising.
I have been provided with some large colour photographs of the injury, which the mother says occurred on this occasion. She concedes she “down played” the incident with the police because she did not want the father charged with a criminal offence.
The father is now thirty-six years of age. When he was nineteen, he suffered a cerebral aneurism. He suffers from depression and anxiety, for which he is prescribed mediation. He is a disability support pensioner. His sole source of income is social security.
The mother is now twenty-eight. She is not currently in the paid workforce. She lived in Perth for eight years, until she turned twenty-one. She then lived in South Australia, particularly in [omitted] and [M]. Her mother lives in Perth and she has friends there.
The geographical difficulties of the case are compounded by the parties’ financial circumstances. The parties will necessarily find it difficult to travel. The father cannot easily move to live in Perth. The mother, although she had the financial resources to leave [M], will find it difficult to return to live there. She cannot return to the home she shared with the father. She has no inclination to find alternative accommodation in the town.
In the past, the mother to has suffered from depression. She says this has been in response to her difficult and unhappy circumstances in [M], which have largely been created by her dysfunctional relationship with the father.
It is her case that she travelled to Perth, with [X], because it is where she feels happy and supported and importantly safe. It is her case that she did not conceal from the father her intention to move to Perth and he did not initially object.
She has now been in Perth, with [X], for a period approaching five months. The father’s position is that he believed the mother was going to Perth for a defined period of time and would return, with [X], to [M]. He says that the mother told him, from Perth, she would not be returning and, in effect, presented him with a fait accompli.
The legal principles, in the Family Law Act, relating to children are based on twin pillars of equal importance. Firstly, the court is directed to consider the benefits of a child having a meaningful level of relationship with both parents.
Secondly, the court is directed to consider the need to protect a child from exposure to family violence, neglect and abuse. These considerations are equally important and one is not subservient to the other.
The court’s responsibility is to fashion an idiosyncratic outcome in respect of each case which comes before it and ensure that the interests of each individual child concerned is best served. However in shaping that outcome, the court must have regard to the principles contained in the Family Law Act, particularly section 60CC, which specifies the factors applicable to the court determination of what is in a child’s best interests.
This is an interim hearing. It has been scheduled at short notice because of the urgency arising from the mother’s move of [X] to Perth and the implications this has for her relationship with her father. The case also has implications in terms of Ms Carlyle’s entitlement to live how and where she wishes, independently of Mr Thomas.
Interim hearings are not designed to determine long term or final arrangements in respect of children. The evidence available is usually limited and cannot be subjected to detailed scrutiny. However, in a case such as this one, the outcome of the interim hearing can have significant ramifications for the parties and children concerned.
The mother wishes to remain living in Perth with [X]. If the father remains living in [M], given [X]’s tender years, it seems highly probable that [X] will not have much of a relationship with him, certainly not one which could be considered meaningful.
For this reason, in his application filed 17 August 2011, the father seeks orders that would see [X] living predominantly with him in [M], on both a final and interim basis. He proposes that [X] spend time with her mother on terms to be agreed between the parties or as specified by the court.
The mother, in her response filed 26 September 2011, wishes final and interim orders made that [X] live with her in Perth. She proposes that the father spend time with [X] in a professionally supervised setting. She does not specify where this should occur and by whom the supervision should be provided.
Both parties seek that he or she should have sole parental responsibility for [X]. Their respective positions do not disclose the possibility of any intermediary position, either in respect of the allocation of parental responsibility or more importantly where and with whom of them [X] should live. In blunt terms, it is either [M] with her father or [C] with her mother.
In particular, the father is unwilling to contemplate living away from [M]. He advances no proposals as to how he would advance his relationship with [X], if [X] lives away from [M].
Similarly, the mother through her lawyer, Mr Cole, has indicated that she will not contemplate returning to live in [M]. Her only proposal is that [X] should live in Perth, with her and spend supervised time with her father.
It is the mother’s position that her and [X]’s continued residence in Perth is justified by her concerns about the child being re-exposed to the father’s violent and anti-social behaviour and her assertion that she has been [X]’s primary provider of care and, as such, it is axiomatic that it would not be in [X]’s best interests to change this arrangement, either on an interim or final basis.
The father’s position is that the mother has unilaterally relocated [X] away from [M] and, as such, has displayed a compromised level of understanding of the responsibilities of being a parent, one of which is to encourage and support a proper level of relationship with the other parent concerned.
Each party asserts the outcome proposed by him or her is the one which will be in [X]’s best interests. From the court’s point of view, each such outcome, at this interim stage, is unpalatable and creates dilemmas in respect of the service of [X]’s best interests within the legal matrix provided.
Australia is a free country. The mother is entitled to live how and where she chooses. The court’s jurisdiction extends to orders in respect of the parenting of [X]. The court can only compel Ms Carlyle to return to [M] through legal sleight of hand. It cannot explicitly direct her to live in any location, it can only attempt to force her hand, by presenting her with her own dilemma – either you return to live in [M] or the child will live with her father, notwithstanding your protestation that this will be disadvantageous to her.
Similarly Mr Thomas cannot be compelled to go and live in Perth to advance his relationship with [X]. However, from his perspective, he is the wronged party. It was Ms Carlyle who left [M] and it is she who should return there, rather than he who should have to move against his wishes. However that return and [X] having the optimal level of relationship with each of her parents can only be achieved through compulsion indirectly applied to Ms Carlyle.
The mother, through her counsel Mr Cole, has said she will not be so compelled. In effect, she returns the dilemma to the court. It is her case that it is demonstrably contrary to [X]’s best interest that she should live with a violent and abusive parent, in the form of
Mr Thomas, in [M], as she will not return there whatever the circumstances.
Given that Ms Carlyle has said she will not be compelled to return to live in [M] and Mr Thomas will not move, the mother asserts that the only viable outcome for [X] is that she should continue to live with her mother in [C], regardless of the circumstances of her move there and the implications of it in terms of her relationship with her father.
The applicable legal authorities are generally disapproving of a parent unilaterally relocating a child far away from the other parent concerned, unless the relocation can be justified by the existence of some form of emergency or threat to the child or parent concerned.
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.
It is against this complicated background that the interim decision in the present case must be made. It is now appropriate to outline the legal principles applicable to the determination of such interim decisions before turning in more detail to the evidence of each of the parties and the conflicts in that evidence, of which there are many.
The legal principles applicable
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.
As such, at the interim stage, it is very often impossible for the court to resolve disputed issues of fact. The central issue in dispute between the parties, in the present case, is whether the father is the violent and abusive person portrayed by the mother.
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[3], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[3] 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.[4]
[4] 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.[5] As Kay J pointed out in Godfrey v Saunders[6] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[5] See D and S V (2003) FLC 93-137 at 78, 280
[6] 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 & 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.[7]
The evidence
[7] See C & S [1998] FamCA 66
a) The father’s case
The father asserts that the mother moved into his unit in [M] in October 2006. It is his case that after [X] was born, he and the mother shared the care of the child equally.
It is also the father’s case that he was also equally involved in the performance of household tasks, including laundry, cooking and cleaning. He has many criticisms of the mother’s parenting skills. In essence, Mr Thomas asserts that the mother is a poor and neglectful parent and in those circumstances much of the parenting of [X] fell onto him.
In support of his assertion that he was integrally involved in parenting [X], the father points to the fact that, as he was not in paid employment, he was available to parent [X] each day and did so because the mother was more intent on socialising on her computer and sleeping. Mr Thomas has deposed that it was impression that the mother “did not seem interested in taking care of [X].”[8]
[8] See father’s affidavit at paragraph 12
The father also asserts that the mother suffers from a number of serious psychological deficits, including obsessive compulsive disorder; post-traumatic stress disorder; attention deficit disorder; and depression. He also asserts that the mother was violent towards him, in the past, in [X]’s presence.
The father concedes that the mother raised with him the issue of her returning with [X] to [C]. However, it is his position that the mother indicated to him that she would only be moving there temporarily in order to receive medical treatment. He also understood that the mother would pay for him to visit Western Australia each month. Though how this travel was to be funded is not specified in his affidavit material.
Whatever is the truth of this situation, one of the few factual matters not in dispute between the parties is that Ms Carlyle and [X] went to [C] in early June of 2011. Accordingly, Mr Thomas has not interacted with [X] for a period of over four months. Mr Thomas’ evidence is that the mother informed him at some time in mid-June that she would not be returning with [X] to [M]. No arrangements for Mr Thomas to travel to Western Australia have materialised.
Mr Thomas filed his application with the court on 17 August 2011 and it was made returnable on 30 August. At that stage, he sought that a recovery order issue in respect of [X] – that is police officers should be directed to remove the child from her mother and deliver her to him.
The mother attended court on 30 August 2011 by telephone. She had learned of the father’s application a few days earlier and had not had the opportunity to obtain legal advice. She needed to apply for legal aid.
The proceedings were adjourned until 15 September. By this stage, the mother had obtained legal representation but had not had time to prepare her answering documentation. In these circumstances, the proceedings were adjourned until 30 September.
It is Mr Thomas’ position that he has moved as quickly as possible in order to pursue his application. He also had to apply for legal aid. Thereafter, the proceedings have been delayed whilst the mother has prepared her case. Delays of this kind, involving parties having to apply for legal aid, over state borders, are common in cases such as the present one.
The factual issues arising in this case are also common in the Federal Magistrates Court, a busy first instance court. One party, invariably a mother, asserts that she had no viable alternative in escaping an unsatisfactory and dangerous relationship other than to seek safety and familial support elsewhere, very often interstate.
The other party, invariably a father, denies that he has done anything of consequence and asserts that the move in question is ill-considered and selfishly motivated by the other parent and will have catastrophic consequences for his relationship with the child concerned.
Logistically these cases also frequently raise difficult issues. It takes time for legal aid to be obtained and responding documents prepared. Parties wish to appear by telephone. Emotions are at their most extreme. Very often no arrangements have been made for the parent left behind to have any contact with the child concerned.
In addition financial issues loom large. Although the departing parent had sufficient monies to leave, monies are not available to fund a return. As the move occurred without extensive consultation with the other parent and the relocating parent has no intention of returning, where that parent will live, upon return, is problematic.
All these issues are present in the current matter, which must be determined in an abbreviated hearing, with limited evidence available and no opportunity to subject that evidence to scrutiny. Ms Carlyle and her counsel attended the hearing by telephone from Perth.
Mr Thomas denies that his medical conditions impact upon his ability to parent [X]. No independent medical evidence is available in this regard. The mother asserts that the father’s aneurism was precipitated by drug abuse. It is also the father’s case that he has available to him a comfortable home in [M] to accommodate [X] with which she is familiar. He has no proposals in respect of assisting the mother financially to returning to [M] or providing her with accommodation in the town.
Mr Thomas has lived in [M] for many years. It is his case that he has much support in the town. Importantly, he has another child [Y] born [in] 1997, who also lives in [M] with her mother.
It is Mr Thomas’ case that [Y] and [X] have a close and loving relationship with one another as in the past they have spent a great deal of time together. It is the father’s position that it will be detrimental to [X]’s best interests if she is separated from her sister [Y] for any lengthy period of time.
Mr Thomas’ position is summarised in the following portion of his affidavit material:
“[X] and I share a very close loving relationship and it will be impossible for [X] and me to maintain a close relationship if she lives in Western Australia. [X]’s home has always been is South Australia.
I have not spent any time with [X] for about six weeks. I am worried for [X]’s safety while she is in the mother’s care due to the mother’s mental health issues and the mother having failed to properly supervise [X] in the past.”[9]
b) The mother’s case
[9] See father’s affidavit at paragraphs 16 and 17
The mother’s case is that the relationship between the parties was short, brutal and unhappy. She asserts that the father had problems controlling his anger and was frequently verbally abusive towards her. It is also her case that he drank excessively.
In contrast to the father, Ms Carlyle has deposed that the father had “minimal” involvement in caring for [X] or running the parties’ joint household. It is her case that Mr Thomas spent most of his time playing on his play station or drinking alcohol to excess.
In addition to allegations that she was the subject of verbal abuse from the father, the mother has deposed that she was also the victim of regular serious physical assaults by the father. She alleges that he broker her nose on one occasion and would often punch her on the side of her head.
It is the mother’s case that she reported her concerns regarding the father’s violent behaviour towards her to her general medical practitioner, Dr S, in [M]. Ms Carlyle was also referred to a psychologist in respect of the issue.
The psychologist concerned is Ms S. The mother has obtained a report from Ms S dated 4 September 2011. The report concerns that
Mr Thomas was involved in respect of some of the mother’s sessions with Ms S.
In this report, Ms S has written as follows:
“…Ms Carlyle and Mr Thomas both describe their relationship as volatile, noting they had difficulties with communication and reported frequent arguments during which Mr Thomas resorted to abusive language and derogatory name calling of Ms Carlyle. He further admitted to using physical violence with Ms Carlyle (including punching her in the head while [X] was present) during several of their arguments and blamed her for his violent behaviour. In later sessions, Mr Thomas continued to resist accepting responsibility for his own behaviour in relation to this violence, maintaining that Ms Carlyle was responsible for his behaviour. Mr Thomas also admitted to resistance regarding therapeutic involvement and indicated his attendance was to appease Ms Carlyle – suggesting that he was less committed to improving their relationship.…”[10]
[10] See psychological report of Ms S dated 4 September 2011 being annexure A to the mother’s affidavit filed 26 September 2011
Ms S’s opinion is that the mother has been [X]’s primary carer since her birth. Ms S is of the further opinion that the mother has been the subject of significant violent and abusive behaviour from the father, who has confirmed this behaviour but demonstrated little insight into its consequences, either for the mother or [X]. In these circumstances, Ms S opines as follows:
“…The majority of Ms Carlyle’s family and friendship support network are located in Western Australia and it is likely that she would have been in need of this support following the termination of her relationship with Mr Thomas. Should attempts be made to separate [X] from her mother, I have no doubt that [X] will suffer from significant psychological issues. Given the above information (Mr Thomas’s poor health, his violence and former lack of interest in contributing to parenting), it is apparent that Mr Thomas is ill-equipped to provide a safe, stable home environment for a child. To ensure the physical and psychological well-being of [X], it is imperative that she remain in the care of her mother, Ms Carlyle.…”[11]
[11] Ibid
The mother’s case is that the relationship between the parties deteriorated during 2011 as a consequence of the father’s increasing violence towards her and excessive alcohol consumption. This culminated in her being the victim of a serious assault in late May 2011. As previously indicated, police were called to this incident.
The mother categorically denies the father’s assertion that she was the protagonist of this violence. It is her case that the father “shoved a plastic drink bottle into [her] face causing bruising to [her] eyes.”[12] The mother has provided colour photographs of her injuries on this occasion.
[12] See mother’s affidavit filed 26 September 2011 at paragraph 20
Against this background, it is the mother’s case that she openly made arrangements to move back to Perth with [X] permanently without apparent objection from the father. In these circumstances, it is her position that it would be oppressive for her to be compelled to return to live in [M] because the father has apparently changed his mind. In any event, she has no intention of returning to live in [M] under any circumstances.
The mother denies that she suffers from any serous psychological condition. She confirms a diagnosis of depression but asserts that this was due to the father’s violent and unacceptable behaviour towards her.
Like the father of her, the mother has nothing of a positive nature to say about Mr Thomas. She alleges that he has a significant criminal record, involving the possession of guns and drugs. She denies ever having been violent towards Mr Thomas. It is also her case that, prior to the parties final separation, their relationship was marked by extended periods of separation, during which [X] remained in her sole care.
The mother confirms the existence of [Y]. It is her case that she encouraged the father to pursue some form of relationship with [Y], but she refutes the father’s assertion that the relationship between him and [Y] (and by necessary implication between [Y] and [X]) is a close one.
To the contrary, it is the mother’s position that Mr Thomas is an incompetent and disinterested parent. It is her case that Mr Thomas has two other children besides [Y] and [X] – [name omitted] aged eleven and [name omitted] aged fifteen. It is the mother’s case that the father has no contact whatsoever with either of these children.
The mother’s case can be summarised in the following extract from her affidavit material.
“The Applicant does not have a good relationship with [X]. I would be opposed to him having contact with [X] other than initially supervised through a supervision agency. The Applicant does not accept that the relationship is over and it is not viable for me to initially supervise the Applicant’s time with [X].” [13]
[13] See mother’s affidavit at paragraph 29
Consideration of the application section 60CC factors
a) The primary considerations
[X] has not had any form of relationship with her father for a period of just over four month’s time. If the current geographical circumstances of the parties continue, it seems likely that this state of affairs will not change. Essentially, [X] will not have any relationship with her father, let alone a meaningful one.
Given her age and level of cognitive development, [X] cannot maintain a relationship with her father via the telephone or computer. Ms Carlyle has no plans and lacks financial resources to visit [M] with [X].
Mr Thomas has not put forward any proposals to spend time with [X] in Western Australia. For obvious reasons, he has concentrated on his preferred outcome in the case. However, like the mother, he is financially disadvantaged and it will be difficult for him to visit Western Australia, certainly with sufficient regularity to render his relationship with [X] “meaningful”.
Relocation has obvious implications for the quality and intimacy of the parental relationship a child has with the absent parent. These concerns are particularly pressing in respect of young or immature children. As a result of these factors, it has been said by the High Court that relocation cases need careful analysis. It is axiomatic that the interim hearing stage does not provide a forum for such careful and delicate analysis.
In this particular case, I bear in mind what was said by Boland J in Morgan & Miles (2007) FamCA 1230[14]. Her Honour confirmed that the Court should be reticent to determine issues of relocation at the interim stage. She said as follows:
“…It [is] highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in Campbell & Spalding remain apt and relevant to determination of these cases”.
[14] Morgan & Miles (2007) FamCA 1230
It is the mother’s case that the issues of family violence raised by her are of such moment that, in the overall circumstances of this case, her re-location of [X] away from [M] to Western Australia is justifiable as being in [X]’s best interests.
The relevant section speaks of the “need to protect” the child concerned from both the physical and psychological harm arising from being “exposed to” family violence. It is the father’s case that removing [X] many hundreds of kilometres away from him, with the consequence of potentially permanently severing the paternal relationship between the two, is not a proportionate response to the degree of harm potentially arising for [X], particularly given that he denies any such violent behaviour.
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.[15] Not all incidents of family violence will be necessarily damaging for a child.
[15] 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.
It is the mother’s case that she was the victim of systematic and regular violent behaviour at the father’s instigation. She would refute any suggestion that she provoked the father’s conduct towards her or it was isolated and exceptional in character. As such, it is her position that the family violence involved in this case is in the more serious category.
She relies on the photographs which demonstrate an obvious injury to her in May of 2011. In addition, she places particular weight on the report of Ms S. In particular, Ms S has noted the father’s admission to behaving violently towards the mother and has allegedly demonstrated little regret for or understanding of his behaviour.
In this regard, I note that Ms S’s report is not on oath and has not been subjected to any scrutiny through cross-examination. To my mind however, it is a significant piece of evidence. It raises significant issues to do with Mr Thomas’ previous behaviour and attitude towards both the mother and [X].
It is not uncommon for the court to be unable to resolve definitively issues relating to family violence at the interim stage. It is rarely the case that one party can irrefutably prove his or her allegations at the interim stage. That does not absolve the court of the responsibility to deal with allegations of family violence stringently.[16]
[16] See Amador & Amador (2009) 43 Fam LR 268
I acknowledge that 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 early childhood are important for children 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 expenses together. In this case, at this stage, [X] is unlikely to have the potential to have such a relationship with her father, if the present circumstances prevail.
However, notwithstanding this important consideration, I am of the view that the serious nature of the allegations of family violence made by the mother, which are corroborated by other sources of evidence, require the court’s very serious consideration, notwithstanding the potentially detrimental consequences for [X] arising from the mother’s relocation of her.
Where family violence is endemic in a parental relationship it has the potential to be damaging for children in a variety of ways. Most obviously they may be directly injured by an episode of violence or frightened by it. More subtly, children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child's parents are not appropriate psychological role models for children.[17]
[17] See In The Marriageof Patsalou (1994) 18 Fam LR 426
There is a real danger that children, who are exposed to family violence, will perceive that abuse is part of life for females (in particular) and become accepting of such behaviour. As a consequence, children may learn that violence is an appropriate way to resolve disputes and thus will follow in the footsteps of a violent parent, when they become parents themselves, thus entrenching a cycle of violence between familial generations.[18] This is equally damaging for boys as it is for girls.
[18] See Blanch v Blanch & Crawford (1999) FLC 92-837 – per Mullane J at 92-837
Boys may follow in the footsteps of violent fathers and become violent parents in turn. Girls may mirror the behaviour of their mothers and return to dangerous and unsatisfactory relationships, when they are mature, exposing their own children to danger. In the shorter term, children who are exposed to aggression are likely to behave aggressively themselves. Accordingly, children of violent parents are at real risk of forming disturbed interpersonal relationships, both as children and adults.
In T & N,[19] Moore J, after reference to social science research, identified the highly detrimental consequences, to the wellbeing of children, of being exposed to family violence. She said as follows:
“They are terrified and simultaneously come to accept it as an expected part of life; they may learn that violence is acceptable behaviour and an integral part of intimate relationships; or that violence and fear can be used to exert control over family members; they may suffer significant emotional trauma from fear, anxiety, confusion, anger, helplessness and disruption in their lives; they may have higher levels of aggression than children who do not have that exposure; and they may suffer from higher anxiety, more behaviour problems and lower self-esteem than children not exposed to violence. Clinical profiles for children who witness domestic violence include post-traumatic play, diminished ability to regulate affect in the forms of hyper-arousal, numbness, emotional constriction, a low frustration threshold, nightmares and other sleep disturbances, aggressive behaviours, intense and multiple fears, regression in developmental achievements, and disturbances in peer relations.”
[19] See T & N (2003) FLC 93-172 at 78,760
In addition, for obvious reasons, spousal victims of family violence are themselves likely to be extremely fearful both for themselves and of any child concerned, of any form of interaction whatsoever with the violent parent. Such fears may lead to the abused parent wanting to be as far as possible from the other violent party.
In these circumstances, the mother’s actions in moving to Western Australia must be examined. She would say that Western Australia was her most logical destination, given her circumstances, as it is where her mother and most significant friends live. In addition, she would assert that she made no secret of where she was going, a fact disputed by the father.
Notwithstanding his disavowal of any violent behaviour toward
Ms Carlyle, Mr Thomas’ position would appear to be that it was a disproportionate response her to move to another state. She could hypothetically have moved to another residence in [M] and obtained the protection of a family violence order. She could have moved to a nearby town or even to Adelaide to ensure a reasonable level of safety for herself in the circumstances, which would not have resulted in such potentially serious consequences for his relationship with [X].
These are important considerations. Pursuant to section 60CG the court is directed, consistent with the best interests of the child concerned, to make orders that will not expose a person to an unacceptable risk of family violence. Clearly the distance involved in any move; the nature of the violence involved; and the circumstances of the parties concerned; will have implications for assessing the risk arising from the violence alleged.
In this case, if Ms Carlyle remains in Western Australia and
Mr Thomas remains in South Australia, the risk of re-exposure to family violence is nil. It is more difficult to assess this level of risk in other hypothetical situations. However, it would seem to me to be likely that the risk would be manageable (and so not one unacceptable to take) if Ms Carlyle lived more proximately to [M] and availed herself of the protection of a family violence order.
However, underlying the hypothetical nature of these considerations is Ms Carlyle’s assertion that she will not return to [M] or anywhere close to it, under any circumstances whatsoever. As such there may be perils arising to [X]’s best interests if the court attempts to test the validity of Ms Carlyle’s resolve in this regard.
The additional considerations
[X] is too young to be able to express any view about the appropriate outcome in this case [s.60CC(3)(a)]. Both parties assert that they have a very significant relationship with her. It is also the father’s position that [X] has a close relationship with her half sibling [Y] [s.60CC(3)(b)].
At this stage, particularly in the absence of any independent expert assessment, I am unable to resolve one of the central evidentiary disputes in this matter, namely was the father a disinterested parent, who left caring for [X] to the mother or was he an involved and loving parent, as Mr Thomas would have it.
At this juncture however, it would appear to be the case that [X]’s primary carer is the mother and this has been the situation now for a period in excess of four months, a significant period of time when [X]’s age is considered. In this context it would seem that close consideration must be given to any further radical alterations being made in care arrangements for her.
At her age (twenty nine months) [X] does not have sufficient cognitive development to understand why she is being separated from a carer. Such a separation may have developmental implications for the child [s.60CC(3)(g)]. That is not to promote a mother’s care above a father’s. Merely it recognises the fact that [X] has been indisputably in the sole care of her mother for a period of over four months.
In these circumstances, a significant change in [X]’s living arrangements may have serious implications for her overall wellbeing. Just as it was traumatic for her to be separated from her father, so will it be if she is abruptly changed from her mother’s care to her father’s care. Given her age, [X] would not be able to rationalise this dramatic change in her circumstances [s.60CC(3)(d)].
Although Ms Carlyle has ruled out the possibility that she would return to [M], in any circumstances, including those which made it conditional her having the “residence” of [X] being dependent on her living in that locale, the circumstances surrounding such a relocation are in any event highly problematic.
Ms Carlyle would have to find somewhere to live. She would have to finance her return to [M]. Mr Thomas is not in a position to assist her financially with either such issue. More importantly, such a return would also deprive her of the emotional and familial support which dictated her move to Western Australia in the first place.
Underpinning the father’s case is his assertion that the mother has demonstrated a compromised ability to facilitate [X]’s relationship with him, which is clearly demonstrated by her decision to move the child so far away from him [s.60CC(c);(f);(i) & (4)]. The mother’s position is that the father has himself demonstrated a compromised level of insight into the responsibilities of being a parent by his continued violent behaviour towards her (Ms Carlyle) in [X]’s presence.
In Re L (Contact: Domestic Violence)[20] Dame Elizabeth Butler-Sloss, President of the English Court of Appeal said as follows:
“The family judges and magistrates need to have a heightened awareness of the existence of and consequences (some long term), on children of exposure to domestic violence between their parents or other partners. There has, perhaps, been a tendency in the past for courts not to tackle allegations of violence and to leave them in the background on the premise that they were matters affecting the adults and not relevant to issues regarding the children. The general principle that contact with the non-resident parent is in the interests of the child may sometimes have discouraged sufficient attention being paid to the adverse effects on children living in the household where violence has occurred. It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally.”
[20] See Re L (Contact: Domestic Violence) [2000] 2 FLR 334 at page 341
Ms Carlyle’s position is predicated on considerations of this kind. It is her case that the father lacks capacity to provide for [X]’s emotional needs and through his behaviour has demonstrated a gross failure in his parenting.
The mother has provided the barest of proposals for [X] to have any form of relationship whatsoever with her father. If [X] remains in Western Australia and Mr Thomas remains in South Australia, the logistical difficulties of [X] spending time with her father will remain significant and quite possibly insurmountable [s60CC(3)(e)].
This is an important consideration. When considering any relocation matter, the court must assess the adequacy of any proposed arrangements for the child concerned to spend time with the parent left behind. This is a major deficit in the mother’s case. She proposes supervised time but does not specify where that time would occur; what duration it would take; and by whom it would be supervised.
The High Court of Australia considered the question of relocation in U & U.[21]The circumstances of that case were very different to the present one. For one thing, it concerned a potential international relocation. One parent wished to restrain the other parent concerned, by means of an injunction, from taking the child outside of Australia.
[21] See U & U (2002) FLC 93-112
In the case, the High Court held that the court was not bound to consider only the proposed arrangements put forward by each of the parties concerned. Rather, as the best interests of the child concerned remained the paramount consideration, it was open to the court to consider other potential outcomes.
One of these was the possibility of the other parent moving to be closer to the child concerned, in the proposed place of relocation, rather than confining the case to issues of either allowing the relocation or restraining the parent who wished to move from relocating the child concerned.
Justice Gaudron expressed the issue as follows:
“…it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility, particularly given the father's origins, his professional qualifications and family contacts in India, seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father's choice as to where he lives is beyond challenge in a way that a mother's is not.”[22]
[22] Ibid at page 89,081
These comments appear apposite to this particular case. Although it may not be his preference, it is not beyond the bounds of possibility that Mr Thomas himself could move to Perth at some stage in the short to medium term. I appreciate that, given his financial circumstances and ties in [M], this may be difficult for him to accomplish or even contemplate.
However, the other side of the coin is, if the mother’s allegations of serious family violence are true, it seems sexist, fundamentally unfair to Ms Carlyle and contrary to the principles of the Family Law Act that either [X] move into the care of her father or in some way Ms Carlyle be compelled to return to [M], on the basis that otherwise she will forfeit the care of [X], when no consideration whatsoever has been given to the possibility of Mr Thomas himself moving.
This appears to me to be the nub of the case at this interim stage. I have grave concerns about the allegations of family violence in this case. I appreciate the allegations are as yet untested and as such remain unsubstantiated. But notwithstanding this difficulty, given the structure of the Family Law Act, I cannot dismiss the allegations.
If the picture painted of him by Ms Carlyle and Ms S is true, I would have grave concerns about entrusting a child of [X]’s tender years to the care of Mr Thomas. He is potentially a flawed role model for the child. If Ms S’s assessment is correct, he has no insight into the consequences of his behaviour. If Ms Carlyle’s evidence is true, he has significant issues to do with substance abuse and anger management. As such it would be unacceptable to place [X] in his care [s.60CG(b)].
It is not a question of giving Mr Thomas’s the benefit of the doubt, at the interim stage, about this issue of family violence. The focus for the court must always be on how [X]’s best interests can be achieved, whilst acknowledging the obvious limitations of the hearing involved to determine that matter at this stage. As such, notwithstanding the unsubstantiated nature of the allegations in question, they cannot be disregarded. They remain potent and serious.
Accordingly, on the evidence available to me, I do not consider it would be in [X]’s best interests to live with her father at this stage. On balance, it would appear to be better if she continues to live with her mother. The next, more vexed question is where that should be. This issue has implications for the mother’s entitlement to freedom of movement, which is a factor the court cannot legitimately ignore.
Hypothetically, the best option for [X] is likely to be one where she has the opportunity to interact safely with each of her parents and to develop appropriate levels of relationship with each of them. However the optimal outcome is not easily achievable in this case, at this stage of proceedings, given the apparent unwillingness of each of the parties to consider moving closer to the other. Sadly, the focus in the case, in pragmatic terms, becomes what is the least bad outcome for [X].
Ms Carlyle has said she will not move back to live in [M]. This is a choice which she is entitled to make. The court cannot explicitly direct her to live anywhere. For the reasons outlined, it is likely to be contrary to [X]’s best interest to place her in the care of her father, notwithstanding the stance the mother has taken and the unsatisfactory nature of her proposals as to how [X] may maintain some form of relationship with her father.
In these circumstances, it is a common phenomenon that the court provides a relocating parent with a choice – orders for a child to live with a particular parent are made conditional on that parent living in a specified location otherwise an order is made that the child live with the other parent in the location left behind.
Necessarily, there is level of artificiality about such orders, which are often, as in this case, advocated by neither party concerned. The implication of the orders being that the relocating parent will altruistically subordinate his or her personal expectations to what the court has found to be in the overall best interests of the child concerned and so will return, albeit unwillingly, to a place which is unpalatable to him or her.
Justices Gummow and Callinan put it this way in U & U:
“maternity and paternity always have an impact upon the wishes and mobility of parents; obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement having been incurred.”[23]
Clearly this is the case. Necessarily part of the duty statement of being a good parent is the fact that one’s personal hopes and plans become subservient to what is best for one’s child.
[23] U &U (supra) at 89,091
The problem in this case is that Ms Carlyle has already moved. She has said she will not return to [M]. There is no obvious place for her to live in the area of [M] and it will be difficult for her to manage it financially. Any such return could only occur under an indirect form of compulsion. In addition, I am satisfied that the uncertainty arising from such a change of circumstances would be unsettling to [X].
In these circumstances, in my view, it would be both imprudent and contrary to [X]’s best interests for the court to attempt to test Ms Carlyle’s resolve in respect of her unwillingness to return to [M] and assume that she will do so if compelled. This is particularly so because Mr Thomas’ circumstances must also be considered. His preparedness to move also has obvious implications for the nature of [X]’s relationship with him.
It is also open to Mr Thomas to re-order the priorities of his life to emphasise [X]’s needs. As Justice Hayne said in U & U:
“If effect is to be given to those principles, [the principles underlying Pt VII of the Act] it must not be assumed that one parent (the father) cannot move and the that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in the place of his choosing. It is the interests of the child which are paramount, not the interests or needs of his parents, let alone the interests of one of them.”[24]
[24] U v U (supra) at p 89,103
The mother’s case is that she went to Western Australia with the father’s knowledge and at the very least tacit approval. This remains an area of contention between them. Certainly, the issue of whether Ms Carlyle had Mr Thomas’ clear and unequivocal approval for the move appears clouded in uncertainty.
The presumption of equal shared parental responsibility is rebutted if there are reasonable grounds for the court to believe that a parent of a child has engaged in family violence [s.61DA(2)]. In this case, it is credible to me that the parties’ household was from time to time a violent one. To this end both parties assert that the other was violent. A state of affairs confirmed by Ms S’s report and the colour photograph of Ms Carlyle’s eye.
Accordingly, I do not propose to make an order that the parties have equal shared parental responsibility for [X]. In any event, I do not believe that it would be appropriate for such an order to be made at the interim stage [s.61DA(3)].
For the reasons provided, I consider that it is likely to be in [X]’s best interests if she remains living with her mother. I have given close consideration to the possibility of attempting to fashion a form of order that would see the child living with her mother nearer to [M] given the obvious and serious implications, for [X], of her relocation to Western Australia and the general undesirability of such an issue being determined definitively at the interim stage.
However, I do not think that this would be a viable outcome, given
Ms Carlyle’s opposition to it and the logistical difficulties arising. In any event, the issue of relocation remains a live issue and is one which is capable of being revisited at the final stage, particularly if a final hearing can be heard relatively quickly. It is also possible that more conclusive evidence will be to hand at such a stage.
Importantly, it is also open to Mr Thomas to travel to Western Australia to facilitate his relationship with [X] if he so wishes. In short this is a case which provides no easy or obvious solution, particularly at the interim stage, given the poor and conflicted relationship of the parties concerned. At this stage, in my view, the best option for [X] is to remain in her mother’s care in Western Australia, notwithstanding the absence of any plans or mechanisms for her to spend time with her father at this stage.
I have not been requested to transfer the proceedings to Western Australia. Accordingly I will fix the matter for final hearing before myself at the earliest opportunity available to me. Notwithstanding the logistical difficulties arising I will also order that a family report be prepared in conjunction with the final hearing.
I will grant the parties liberty to apply in respect of any consequential orders required as a consequence of these orders. Matters possibly arising may include issues regarding the preparation of the family report; arrangements for the father to spend time with [X]; whether the child should be independently represented in the proceedings; and whether the balance of convenience favours the transfer of the proceedings to the Family Court of Western Australia.
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 seventy-three (173) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 14 October 2011
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